Veterans home workers sue over ‘no-mask’ rule during pandemic

A New Jersey court has cleared health care workers to sue a state-run veterans’ home that banned masks during a fatal COVID-19 outbreak.

Forty-two employees or their family members have filed a complaint in Middlesex County Superior Court, alleging that management at the nursing home in Menlo Park, N.J., barred workers from using critical personal safety equipment in 2020 and threatened them with discipline when they questioned the policy or disobeyed.

Judge Glenn C. Slavin said a jury must decide whether the anti-mask rule crossed a line into an intentional wrong. A trial date is set for Sept. 21.

The state of New Jersey has already paid more than $52 million to settle lawsuits brought by the families of 200 residents who died during a COVID-19 outbreak at state veterans’ homes in Menlo Park, Paramus and Vineland, where no-mask rules were enforced.

Attorney Paul M. da Costa, one of the attorneys for the families, now represents the Menlo Park employees in the new complaint.

“No amount of money can ever obviously replace the lives of the lost veterans, but my clients and I are satisfied that this settlement provides a good measure of civil justice and accountability,” da Costa said when lawsuits by veterans’ families were settled in 2021.

Both the Menlo Park and Paramus nursing homes had some of the highest mortality rates in the nation from COVID-19 early in the pandemic, according to a Justice Department report.

Plaintiffs in the new lawsuit by employees at the Menlo Park facility include the surviving family of a 61-year-old certified nurse’s aide who contracted COVID-19 and died in 2020.

Separate lawsuits initially were filed on behalf of each of the 42 workers and later consolidated under one docket, da Costa said.

The state of New Jersey, the New Jersey Department of Military and Veterans Affairs, and the New Jersey Veterans Memorial Home at Menlo Park are named defendants, along with individual administrators who carried out the ban.

Plaintiffs are workers who were deemed essential during the pandemic and continued to report to their jobs at Menlo Park, a 312-bed skilled-care nursing facility.

“My clients continue to hope that the state of New Jersey, once and for all, recognizes them for what they were, healthcare heroes,” DaCosta said.

The lawsuit specifically focuses on rules that barred employees from wearing personal protective masks and gowns early in the pandemic.

Administrators at the veterans home repeatedly stopped staff members from wearing personal protective equipment, stating that it would “scare” residents, according to the lawsuit.

The veterans home is a state-owned and -operated long-term care facility, according to court documents.

The Menlo Park facility implemented a “mask insubordination discipline policy,” and compelled workers who tested positive for COVID-19 to continue to come to work, according to the lawsuit.

The complaint alleges that top management “needlessly endangered the health, safety and mental and physical wellbeing of employees through grossly negligent, reckless and intentional actions.”

Staff were not provided protective equipment and barred from bringing in their own masks for themselves and fellow workers, according to the complaint.

The masking prohibition continued as both residents and workers were sickened, and the illness spread, according to the lawsuit.

Both the Centers for Disease Control and Prevention and the Centers for Medicare & Medicaid Services had advised the use of masks and other personal protective equipment by health care workers.

The judge this week denied the state’s request to dismiss the complaint.

Lawyers for the state of New Jersey argued that worker compensation laws protect the state from being sued for work injuries.

A 2023 Justice Department investigation found that the Menlo Park and Paramus state-run veterans homes failed to heed guidance and implement basic infection control or provide adequate care to residents.

The review identified multiple problems at the two facilities, including lapses in hygiene and infection control, absentee supervisors, a culture of fear and indifference, inadequate safety protocols and failure to properly administer medication, according to Brach Eicler, a law firm that specializes in employment and health care law.

The Justice Department ordered the New Jersey Department of Military and Veterans Affairs to rectify “deficient” practices at the homes.

The New Jersey National Guard was ordered in April 2020 to help feed and transport residents at the Menlo Park facility, following a staff exodus as the outbreak widened and more residents died.

Overall, COVID claimed the lives of more than 200 residents and staff at Menlo Park, Paramus and a third state-run facility in Vineland, according to state data.

Federal officials said the actual number of COVID-related deaths was likely much higher.