New Jersey Employment Discrimination Related to COVID-19 During Public Health Emergency Prohibited by Law

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.

During the current public health emergency, A3848 prohibits employers from “terminat[ing] or otherwise penaliz[ing] an employee” who asks for or takes time off from work, provided that they have a “written or electronically transmitted recommendation” from a licensed New Jersey medical professional stating that “the employee has, or is likely to have, an infectious disease…which may infect others at the employee’s workplace.” The recommendation must specify a period of time during which the employee should not be at work. The law uses a broad definition of “infectious disease” that includes any “disease caused by a living organism or other pathogen.” Id. at § 26:13-2.

An employer must reinstate an employee who meets the new law’s criteria to their previous position at the end of the recommended time period, with no cut in pay, seniority, or benefits. The NJDOL has the authority to impose a fine of $2,500 for each violation. Employees have the right to file a complaint with the NJDOL or in a state court, but the only remedy provided by A3848 for an employee is reinstatement to their job. The law does not provide a cause of action for damages.

The experienced and knowledgeable disability discrimination lawyers at the Resnick Law Group represent workers in New Jersey and New York. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to discuss your rights and options with a member of our team.

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