                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-4980-11T2

JUNE G. VALENT,

     Appellant,
                                              APPROVED FOR PUBLICATION
v.                                                  June 5,2014

BOARD OF REVIEW, DEPARTMENT                     APPELLATE DIVISION
OF LABOR and HACKETTSTOWN
COMMUNITY HOSPITAL,

     Respondents.

___________________________________

           Submitted September 18, 2013 – Decided June 5, 2014

           Before Judges Fuentes, Simonelli and Haas.

           On   appeal  from   the   Board  of   Review,
           Department of Labor, Docket No. 321,223.

           June G. Valent, appellant pro se.

           John J. Hoffman, Acting Attorney General,
           attorney for respondent Board of Review
           (Lewis A. Scheindlin, Assistant Attorney
           General, of counsel; Lisa N. Lackay, Deputy
           Attorney General, on the brief.)

           Hackettstown Community        Hospital       has   not
           filed a brief.

           The opinion of the court was delivered by

FUENTES, P.J.A.D.

     June G. Valent appeals from the decision of the Board of

Review   denying    her   application   for    unemployment       compensation
benefits.       The   Board      found   appellant     was    not   entitled     to

unemployment benefits from January 2, 2011 to February 26, 2011,

because her employer established she engaged in what the Board

characterized as "simple misconduct connected to the work" under

N.J.S.A. 43:21-5(b).          We reverse.      Appellant's employer did not

prove appellant committed misconduct by refusing to submit to

the flu vaccination policy for purely secular reasons.                          The

Board's        decision          upholding         appellant's       termination

unconstitutionally discriminated against appellant's freedom of

expression by improperly endorsing the employer's religion-based

exemption      to   the    flu   vaccination    policy    and      rejecting    the

secular choice proffered by appellant.

                                         I

      The facts underlying this appeal are undisputed.                 Appellant

was   a   registered        nurse   employed    by    Hackettstown     Community

Hospital (HCH).           She started working as a nurse at HCH on a

full-time basis on May 11, 2009.             Effective September 21, 2010,

Adventist Health Care, Inc., the corporate owners of HCH, issued

a policy in its "Corporate Policy Manual" titled "Health Care

Worker Flu Prevention Plan."             The purpose of the policy was to

enhance "health care worker vaccination rates and prevent[] the

spread    of   the    flu    during   the    flu     season   or    pandemic,    to




                                         2                               A-4980-11T2
patients, residents, [healthcare workers] and their families, as

well as the community."

       Participation      with       the    flu    vaccination         directive        was

mandatory

            unless there [was] a documented medical or
            religious exemption. For those with an
            exemption, a declination form must be signed
            and accompanied with an appropriate note
            each year. In addition, regardless of where
            [employees] work, for those who must decline
            the flu vaccine, it will be mandatory to
            properly wear a facemask (available at the
            facility) during the entire flu season, to
            be determined by [employer] based on [Center
            for Disease Control] guidelines. Failure to
            comply with this policy will result in
            progressive discipline up to and including
            termination.

            [(Emphasis added).]

       Appellant   refused       to    be    vaccinated        for    the       flu.        In

communicating      her    decision         not    to    take    the       flu     vaccine,

appellant    did   not    allege      an    exemption      based      on    medical         or

religious    reasons.          She   did    agree,     however,      to    wear    a   mask

during flu season, as specifically authorized by the employer's

policy for those who seek a religious-based exemption.                            Despite

this   concession,       HCH    terminated        appellant's        employment        as    a

nurse based on her refusal to be vaccinated against the flu,

presumably    based      on    purely      secular     personal       reasons,         since

appellant did not claim a religious-based exemption.




                                            3                                     A-4980-11T2
    The     deputy   claims    examiner     found   appellant     eligible    for

unemployment compensation benefits.           The employer appealed.          The

Appeal Tribunal reversed the deputy claims examiner's decision

after   a    telephonic       hearing   in    which       appellant   did    not

participate.     On   appellant's       appeal,     the   Board   reversed    and

remanded the matter to the Appeal Tribunal to give appellant the

opportunity to participate in the hearing.

    The Appeal Tribunal conducted another telephonic hearing;

this time both appellant and her employer participated.                       The

Appeal Tribunal reversed its earlier ruling and found appellant

eligible to receive unemployment compensation benefits.                     After

reviewing the relevant regulatory standards, the Appeal Tribunal

held as follows:

            In this case, the employer elected to
            separate    the    claimant    from    employment
            because    she    would   not     take    a   flu
            vaccination.    The claimant's preference not
            to take a vaccine for her own personal
            health    convictions      simply      did    not
            demonstrate a willful disregard or neglect
            of    the    employer,     as    the     claimant
            demonstrated     an    intent     to    otherwise
            reconcile the matter.     The claimant offered
            to wear a mask.      Furthermore, the employer
            permitted employees to work without the
            vaccine provided they wear a mask and have a
            letter from a spiritual leader, namely a
            non[-]medical professional, which further
            buttresses the Tribunal's conclusion that
            the   claimant     was   not    discharged    for
            misconduct     connected      to     the    work.
            Ultimately, the claimant was discharged for
            reasons which do not constitute misconduct



                                        4                              A-4980-11T2
               in   connection   with   the   work   and  no
               disqualification for benefits arises under
               N.J.S.A. 43:21-5(b).    The employer has not
               presented evidence sufficient to disturb the
               determination   of   the   Deputy   that  the
               claimant was otherwise eligible for benefits
               from 01/02/11; therefore, those findings
               will not be disturbed.

               [(Emphasis added).]

       Acting on the employer's appeal, the Board reversed finding

appellant       violated    the        employer's       flu       vaccination       policy.

Although the Board recognized that appellant agreed to wear a

mask, as specifically provided for in the policy, the Board

found    "she     failed    to      provide      the    required          documentation."

(Emphasis added).          Although, as the Appeal Tribunal correctly

noted, the employer's vaccination policy exempted employees for

medically unrelated reasons as long as they provided religion-

based    documentation,       the      Board    found       appellant      "continued      to

refuse getting vaccinated despite her own doctor's                            disagreeing

with     her     decision        and     refusing           to     give     her     medical

documentation."

       Under these circumstances, the Board found "the employer's

policy     requiring        employees          to      be        vaccinated       was     not

unreasonable."          The       Board        concluded         appellant        was   thus

disqualified to receive unemployment compensation benefits for

the period between January 2, 2011 through February 26, 2011,




                                            5                                       A-4980-11T2
based on "simple misconduct connected to the work in accordance

with   N.J.S.A. 43:21-5(b)."

                                      II

       Our   standard   of   review   of   a   decision   made    by   a   State

administrative agency is well-settled.

             An administrative agency's final quasi-
             judicial decision will be sustained unless
             there is a clear showing that it is
             arbitrary, capricious, or unreasonable, or
             that it lacks fair support in the record.
             Three   channels  of   inquiry  inform  the
             appellate review function: (1) whether the
             agency's action violates express or implied
             legislative policies, that is, did the
             agency follow the law; (2) whether the
             record contains substantial evidence to
             support the findings on which the agency
             based its action; and (3) whether in
             applying the legislative policies to the
             facts, the agency clearly erred in reaching
             a conclusion that could not reasonably have
             been made on a showing of the relevant
             factors.

             [In re Herrmann, 192 N.J. 19, 27-28 (2007)
             (internal citations omitted).]

We are bound to defer to an administrative agency's decision

that    adheres   to    these   standards      because    of     the   agency's

expertise and superior knowledge in the field.            Id. at 28.

       Appellant argues HCH did not establish grounds to terminate

her employment because she complied with all of the material

provisions of the flu vaccination policy.           Appellant also argues

the Board's endorsement of the employer's flu vaccination policy




                                      6                                A-4980-11T2
that    contains       a       religious-based            exemption         violated         her

constitutionally protected right to freedom of expression under

the First Amendment of the Constitution of the United States.

Finally, appellant argues her refusal to be vaccinated under

these       circumstances       was         an       isolated    incident         of      minor

significance and does not warrant a seven-week disqualification

of her unemployment benefits.

       We agree with appellant and reverse.                     Based on the evidence

presented, the Board's decision finding appellant disqualified

for unemployment benefits for simple misconduct under N.J.S.A.

43:21-5(b), based exclusively on her refusal to comply with her

employer's flu vaccination policy, is arbitrary, capricious, and

unreasonable.            The        net     outcome       of    the      Board's        ruling

unconstitutionally violated appellant's freedom of expression by

endorsing     the    employer's           religion-based        exemption        to    its   flu

vaccination policy.

       By    exempting     employees             who   can     produce      religion-based

documentation, the employer's flu vaccination policy is clearly

not exclusively driven by health-related concerns.                                The Board

cannot therefore accept the policy as a proper basis to find

appellant      committed       an    act     of      insubordination        of    sufficient

magnitude       to    render          her        disqualified         for     unemployment

compensation benefits under N.J.S.A. 43:21-5(b).




                                                 7                                     A-4980-11T2
    N.J.A.C.   12:17-10.6     describes   the   standard    for   denying

unemployment   compensation    benefits    when     the    applicant     is

discharged or suspended for insubordination or violation of an

employer's rule.   The regulation provides as follows:

         (a) An individual shall be considered to
         have   been   discharged  for   an   act  of
         misconduct where it is established that he
         or she has committed an act of misconduct as
         defined in   N.J.A.C. 12:17-10.2 and met one
         of the following:

         1. Refused without good cause to         comply with
         instructions from the employer,           which were
         lawful, reasonable, and did not          require the
         individual to perform services            beyond the
         scope of his or her customary job        duties;

         2. Acted beyond the expressed or implied
         authority granted to the individual by the
         employer; or

         3. Violated a reasonable rule of the
         employer which the individual knew or should
         have known was in effect.

         [N.J.A.C. 12:17-10.6.]

N.J.A.C. 12:17-10.2 defines "misconduct" as follows:

         (a) For an act to constitute misconduct, it
         must be improper, intentional, connected
         with one's work, malicious, and within the
         individual's   control,  and  is   either  a
         deliberate violation of the employer's rules
         or a disregard of standards of behavior
         which the employer has the right to expect
         of an employee.

         (b) To sustain disqualification under this
         section, the burden of proof is on the
         employer to show that the employee's actions




                                  8                               A-4980-11T2
            constitute misconduct. However, in the case
            of gross misconduct, the following apply:

            1. Where an employer provides sufficient
            evidence to establish that a claimant was
            discharged for gross misconduct connected
            with the work, prosecution or conviction
            shall not be required to sustain that the
            claimant has engaged in gross misconduct.

            2. If an individual has been convicted of a
            crime of the first, second, third or fourth
            degree under the New Jersey Code of Criminal
            Justice, N.J.S.A. 2C:1-1 et seq., in a court
            of competent jurisdiction, such conviction
            shall be conclusive as to a finding of gross
            misconduct.

            (c) "Connected with the work" means not only
            misconduct that occurs in the course of
            employment   during   working   hours,   but
            includes any conduct which occurs after
            working hours or off the employer's premises
            where there is substantial evidence that the
            conduct adversely impacts the employer or
            the individual's ability to perform the
            duties of his or her job.

            [(Emphasis added).]

    Against     these    standards,       the   Appeal     Tribunal     originally

found   appellant's     employer     had    not    sustained      its    burden   of

proving    appellant's     refusal   to    abide     by    its   flu    vaccination

policy constituted "misconduct connected with the work."                           We

agree with the findings and analysis of the Appeal Tribunal.

The religion-based exemption irrefutably illustrates that the

flu vaccination policy is not based exclusively on public health

concerns    because   an    employee      claiming    an    exemption      is   only




                                       9                                   A-4980-11T2
required to sign a form attesting to his or her faith-based

reason      for   refusing        to   be    vaccinated,      "accompanied         with   an

appropriate note" from a religious leader.                          These requirements

are facially unrelated to public health issues, patient safety

concerns, or scientifically valid reasons for the containment of

the   flu    virus.         The    religion     exemption       merely    discriminates

against an employee's right to refuse to be vaccinated based

only on purely secular reasons.

       Our Supreme Court has clearly cautioned that "[g]overnment

may not, under the First Amendment, prefer one religion over

another or religion over non-religion but must remain neutral on

both scores."         Marsa v. Wernik, 86 N.J. 232, 245 (1981) (citing

Sch. Dist. of Abington Twp. v. Schempp, 374 U.S.                           203, 216, 83

S. Ct. 1560, 1568, 10 L. Ed. 2d 844, 855 (1963)).                           Under these

circumstances,         by    denying        appellant's      application      to   receive

unemployment benefits based only on her unwillingness to submit

to    the    employer's      religion-based           policy,    the   Board       violated

appellant's rights under the First Amendment.

       The    record    is    uncontroverted          that    the   employer       did    not

produce evidence showing appellant's refusal to comply with its

flu   vaccination       policy         for   purely    secular      reasons    adversely

impacted      the     hospital         or    otherwise       undermined     appellant's

ability to perform her job as a nurse.                       Thus, the employer did




                                               10                                  A-4980-11T2
not prove appellant was guilty of misconduct within the meaning

of N.J.A.C. 12:17-10.2(c).

    Reversed.




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