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Articles Posted in Discrimination

The Resnick Law Group achieved a major victory for one of our clients earlier this month, when the New Jersey Supreme Court ruled that she did not have to show an “adverse employment action” in order to bring a claim under New Jersey disability discrimination law. The plaintiff alleged that her employer failed to provide a reasonable accommodation for her, and that this resulted in life altering injuries to her. The court also ruled that the claim was not barred by the state’s workers’ compensation law.

The New Jersey Law Against Discrimination (NJLAD) protects workers against discrimination on the basis of disability. It defines this term very broadly to include illnesses that are “demonstrable…by accepted clinical or laboratory diagnostic techniques.” The text of the NJLAD itself does not specifically require employers to make reasonable accommodations for employees with disabilities, but the New Jersey Administrative Code requires accommodations as long as they do not present an “undue hardship” for the employer. Failure to provide an accommodation is an “unlawful employment practice” under the NJLAD.

One question before the New Jersey Supreme Court was whether a plaintiff has to show an adverse employment action in order to make a claim for failure to accommodate a disability. An “adverse employment action” has typically been defined as a termination, suspension, or demotion. For the first time however, the high court decided that employees that suffer from a disability and do not necessarily fall into the above categories are also entitled to relief, and determined that an “adverse employment action” is not required to be shown in a reasonable accommodation case.
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New Jersey’s employment laws protect workers from a wide range of concerns. They guarantee payment of a minimum wage and compensation for overtime work. They prohibit discrimination on the basis of factors like race, religion, gender, disability, military service, sexual orientation, gender identity, and more. They require reasonable accommodations for pregnant employees and employees who are nursing newborns. These protections apply to job applicants as well as employees, with the goal of ensuring a fair hiring process with opportunities for as many people as possible. Enforcing these rights may require the assistance of an employment lawyer with experience in New Jersey’s legal system. The following is the first installment in an overview of New Jersey laws protecting job seekers, to help you understand your rights.

Employment Discrimination

Employers may not subject employees or job applicants to discriminatory treatment based solely or primarily on certain factors or characteristics. This includes refusing to hire someone because they are part of a protected group. For a job applicant turned down for a job, it can be difficult to prove what motivated an employer’s decision. An employment discrimination lawyer can help build a case under state law.

Protected Categories

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of the following factors:
– Race;
– Religion;
– Gender;
– Age;
– Disability;
– Pregnancy or breastfeeding;
– Marital, civil union, or domestic partnership status;
– Sexual orientation;
– Gender identity and gender expression;
– Military service obligations;
– Nationality or national origin; and
– Genetic information, including refusal to take a genetic test.
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As the COVID-19 pandemic shows signs of winding down, and New Jersey lifts many of the restrictions that have been in place for over a year, employers across the state report that they cannot find enough workers for their businesses. Some employers, rather predictably, blame expanded unemployment benefits. That might be one possible explanation, but it alone does not explain the reported worker shortage. Many of the industries reporting problems finding enough employees, to be blunt, do not have the best track records when it comes to fair wages, workplace safety, and other things that workers should be able to expect from their employers. Federal and New Jersey employment laws guarantee various protections for workers, and the fact that people are not hurrying to return to certain workplaces might serve as a reminder that maintaining these legal protections is an ongoing struggle.

Workers’ Rights Under Federal and New Jersey Law

Statutes at the state and federal level guarantee many New Jersey workers a minimum wage. They also protect workers’ right to a workplace free of discrimination, harassment, and unreasonable danger.

Minimum Wage

The Fair Labor Standards Act (FLSA) has set the federal minimum wage at $7.25 per hour since 2010. 29 U.S.C. § 206(a)(1)(C). For tipped employees, which include many restaurant workers, employers must pay a base wage of $2.13 per hour. Id. at § 203(m)(2), 29 C.F.R. § 531.59.
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New Jersey employment laws bar discrimination based on disability. An employer cannot fire an employee or subject them to other adverse actions because of an injury, illness, or other condition that significantly affects their lives. State law uses a broad definition of “disability” that includes physical and mental conditions. Two lawsuits currently pending in New Jersey’s federal district court allege disability discrimination based on use of prescribed medication. One suit involves a plaintiff with a prescription for medical marijuana. The other involves an amphetamine-based medication used to treat attention deficit hyperactivity disorder (ADHD). The defendant in both cases is a major online retailer that operates multiple warehouses and distribution centers in New Jersey.

“Disability,” according to the New Jersey Law Against Discrimination (NJLAD), includes “any mental, psychological, or developmental disability…which prevents the typical exercise of any bodily or mental functions,” or which can be identified “by accepted clinical or laboratory diagnostic techniques.” N.J. Rev. Stat. § 10:5-12(q). The statute requires employers to make reasonable accommodations for employees’ disabilities. Failure to do so is an unlawful practice under the NJLAD.

New Jersey passed a law in 2009 authorizing the distribution and possession of small amounts of marijuana for medical purposes with a doctor’s prescription. As originally written, the law stated that it did not require employers “to accommodate the medical use of marijuana in any workplace.” It was not clear whether this meant the literal use of marijuana while at work, or if it allowed employers to enforce policies regarding marijuana use regardless of an employee’s medical needs. The New Jersey Supreme Court ruled in 2020 that a plaintiff could bring a disability discrimination claim under NJLAD based on lawful medical marijuana use. The New Jersey Legislature also amended the statute to remove the language about employers and accommodations.
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New Jersey Governor Phil Murphy signed a bill into law in February 2021 that creates a legal framework for the recreational use of cannabis by adults in the state. Voters paved the way for the new law when they approved Public Question 1 by a substantial margin on Election Day in 2020. The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) establishes standards for licensing businesses to distribute and sell marijuana products for recreational use. It directs the New Jersey Cannabis Regulatory Commission (CRC) to work out the details through regulations. Medical marijuana has been legal in New Jersey since 2009, but the law was unclear about employee protections until the state legislature amended it in 2019. CREAMMA includes explicit protections against “adverse actions” by employers based on activity that is now legal. If you feel you’ve been treated unfairly by your employer over use of cannabis, please contact a New Jersey employment discrimination lawyer today.

The Compassionate Use Medical Marijuana Act (CUMMA) established a system for the production, distribution, sale, and possession of small amounts of marijuana for medical use under a doctor’s supervision. Section 14 of the law stated that nothing in the law “shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace.” In early 2020, the New Jersey Supreme Court held that, despite this language, a person using medical marijuana in compliance with CUMMA could assert a claim for disability discrimination under the New Jersey Law Against Discrimination (NJLAD).

The New Jersey Legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA) in 2019, after the events that were the subject of the 2020 state supreme court ruling. CUMCA removed the language in § 14 about not requiring employers to accommodate medical cannabis use. It bars employers from discriminating against employees because they are registered medical marijuana users. It does not bar workplace drug testing, but states that employees who test positive for cannabis must have an opportunity to produce a prescription.

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Arbitration agreements are a common feature in many employment contracts. Under an arbitration agreement, the employee and employer agree to submit any disputes to the arbitration process, either before or in place of filing a lawsuit. Advocates for employees’ legal rights tend to view arbitration as favoring employers for a variety of reasons. While both federal and state law generally favor enforcing arbitration agreements, New Jersey courts sometimes apply extra scrutiny to make sure they are fair to employees. A decision issued by the New Jersey Supreme Court (NJSC) in the summer of 2020 offers a cautionary example of how courts may follow the strict letter of the federal and state arbitration statutes, even when it might seem unfair to the employee. The Appellate Division had ruled in 2019 that an arbitration agreement was unenforceable under the law of contracts. In a 5-1 ruling, the NJSC reversed that decision.

Both federal and state law provide that arbitration agreements are presumed to be enforceable and irrevocable, unless a party can show “a ground that exists at law or in equity for the revocation of a contract.” 9 U.S.C. § 2, N.J. Rev. Stat. § 2A:23B-6. Even if, as is often the case, an employee has no opportunity to negotiate the specific terms of an arbitration agreement, courts will likely find it to be enforceable as long as there was a “meeting of the minds,” meaning that both parties knowingly agreed to all of the contract’s provisions.

In 2003, the NJSC ruled that an employee can only waive statutory rights, such as the right to a trial in a court of law, through “an explicit, affirmative agreement that unmistakably reflects the employee’s assent.” The court further held in 2014 that an arbitration agreement “must be clear and unambiguous” about an employee’s agreement “to arbitrate disputes rather than have them resolved in a court of law.”
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Both federal and New Jersey employment laws prohibit employers from discriminating against employees on the basis of religious affiliation, beliefs, or practices. Employers must accommodate employees’ religious practices to the extent that doing so is not an “undue hardship” on their business. As with many other areas of antidiscrimination law, what exactly constitutes an “undue hardship” is a matter of ongoing dispute. The New Jersey Law Against Discrimination (NJLAD) goes into some detail about certain types of accommodations employers must make for religious observances. Title VII of the Civil Rights of 1964 contains fewer details, but the U.S. Supreme Court has provided interpretation on several important points. Two petitions for certiorari currently pending before the court ask it to reconsider its own precedent regarding employers’ obligation to accommodate religious practices. The 1977 decision Trans World Airlines, Inc. v. Hardison (“TWA”) held that “requir[ing an employer] to bear more than a de minimis cost” to accommodate an employee’s religious practice “is an undue hardship.”

Title VII prohibits discrimination on the basis of religion, while the NJLAD uses the term “creed.” 42 U.S.C. § 2000e-2(a), N.J. Rev. Stat. § 10:5-12(a). The NJLAD does not offer a specific definition of “creed.” Title VII defines “religion” as “all aspects of religious observance and practice,” up to the point that an employer cannot accommodate an employee because of “undue hardship.” 42 U.S.C. § 2000e(j).

The Supreme Court’s ruling in TWA addresses a question specifically mentioned by the NJLAD. State law expressly states that, subject to an “undue hardship” exception, an employer cannot require an employee to stay at work on a day that they “observe[] as [their] Sabbath or other holy day.” N.J. Rev. Stat. § 10:5-12(q)(2). In this context, an “undue hardship” involves:
– Excessive expense, difficulty, or interference with business operations; or
– Violation of a seniority system or collective bargaining agreement. Id. at § 10:5-12(q)(3).

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The coronavirus pandemic continues to hit New Jersey particularly hard, although some good news has appeared in the past few weeks. Two vaccines are gradually becoming available. Certain groups of people will receive the vaccine first, starting with healthcare workers. Eventually, the vaccine will become more widely available. This will raise a question that appears almost every flu season: Can New Jersey employers require their employees to get the COVID vaccine? The answer is, of course, complicated. Employees in some jobs are required by state law to get vaccinated against influenza. Most New Jersey workers are under no legal mandate regarding vaccines, but their employers may be able to require them. Much of this area of law remains unsettled. What little case law exists is based on flu vaccine refusals, so New Jersey’s courts have yet to apply it to COVID-19.

New Jersey Mandatory Vaccination Law

New Jersey has no statewide requirement for employees to receive vaccinations. Employees of any “general or special hospital, nursing home, or home health care agency” licensed by the state must receive an annual flu vaccine. N.J. Rev. Stat. § 26:2H-18.79. This law allows medical exemptions but no religious exemptions. Outside of healthcare, employers have discretion over whether to require vaccinations.

New Jersey Employment Discrimination Law

Two common objections to mandatory vaccines come from people who are unable to receive them for medical reasons and people who object to them on religious grounds.

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Coming to work while sick is always risky, but far too many workers in New Jersey and around the country often feel they have no other choice. They might need the income from a shift, or they might fear losing their job if they call in sick. During the COVID-19 pandemic, the risks that a sick employee poses to their co-workers, customers, and others are far greater. The New Jersey Legislature enacted a law earlier this year that protects employees from losing their jobs or facing other discriminatory actions if they request time off from work during the current public health emergency because they are or might be at risk of transmitting an infectious disease. The law took effect immediately upon its approval by the governor on March 20, 2020. In September, the New Jersey Department of Labor and Workforce Development (NJDOL) issued a final set of regulations implementing these employee protections.

The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against workers on the basis of numerous factors. The extent to which the law protects employees and job applicants from discrimination based on health conditions is a matter of ongoing dispute, particularly with regard to an infectious disease like COVID-19. The NJLAD’s protected categories include “disability” and “genetic information,” but the definitions provided for these terms primarily deal with long-term conditions rather than acute infections. See N.J. Rev. Stat. §§ 10:5-5(q), (oo); 10:5-12(a). The only infectious disease specifically mentioned in the text of the statute is HIV and AIDS.

The new law, A3848, does not limit its protection specifically to employees who may have contracted COVID-19. It is, however, limited to the current public health emergency. New Jersey Governor Phil Murphy signed Executive Order (EO) 103 on March 9, 2020, at a time when there were about eleven known cases of COVID-19 in New Jersey. In just under nine months, that number has increased to over 350,000 in this state alone. The governor has extended the public health emergency nine times, most recently with EO 200 on November 22.

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Both the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD) protect workers against discrimination on the basis of disability. The definition of “disability” has changed over the years to encompass a wide range of conditions. The public’s understanding of addiction has begun to take psychological factors into account. This has led to questions about whether addiction may qualify as a disability under the ADA or the NJLAD. The Equal Employment Opportunity Commission (EEOC) recently reviewed the law surrounding disability discrimination as it relates to opioid use and addiction. If you feel you have been discriminated against for use of opioids, it would be prudent to discuss the matter with a New Jersey employment discrimination attorney to learn what rights you have under state and federal law.

What Do Federal and State Disability Discrimination Laws in New Jersey Say About Opioids?

Opioid addiction is a serious problem in New Jersey and throughout the U.S. The definitions of “disability” in both the ADA and the NJLAD leave open the possibility that some forms of addiction could be considered disabilities. See 42 U.S.C. § 12102(1), N.J. Rev. Stat. § 10:5-5(q). The ADA makes a specific exception, however, for individuals who are “currently engaging in the illegal use of drugs.” 42 U.S.C. § 12114(a).

Opioids and Disability Discrimination

The EEOC’s guidance document delves into the language of the ADA and the regulations implementing the law. It notes that the document does not have “the force and effect of law,” but rather represents its own interpretation of the ADA. It divides the analysis into three questions, the answers to which could lead to a viable claim for disability discrimination.

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