As the COVID-19 pandemic spreads its fear and pestilence throughout our communities, it is important for New Jersey workers to be aware there are many employment laws available to protect their jobs should they need time off from work because they or a family member becomes sick from the virus. This article will discuss job protections provided by New Jersey Law Against Discrimination, the American With Disabilities Act, the federal Family and Medical Leave Act, the New Jersey Family Leave Act, and New Jersey’s Paid Sick Leave Act.
Protections Provided By the New Jersey’s Law Against Discrimination (LAD) and the federal American With Disabilities Act (ADA)
An employee suffering the temporary disabling effects of a virus induced disability may find protection under the “reasonable accommodation” requirements of the New Jersey’s Law Against Discrimination (LAD) and the federal American With Disabilities Act (ADA). Failla v. City of Passaic, 146 F.3d. 149 (3rd Cir 1998); Clowes v. Terminix Int’l, Inc., 109 N.J. 575 (1988).
Although the LAD does not specifically address reasonable accommodation, “our courts have uniformly held that the law nevertheless requires an employer to reasonably accommodate an employee’s handicap.” Potente v. County of Hudson, 187 N.J. 103, 110 (2006). Once an employee has requested an accommodation due to a disability, it is the employer’s obligation to initiate the process of working with the employee to determine the appropriate accommodations, and this interactive process is crucial. Lampley v. Astral Air Parts, Inc., OAL Dkt. No. CRT 1307-06, 2007 N.J. AGEN LEXIS 857, Final Decision (August 17, 2007). The LAD’s state regulations are almost identical to the ADA’s language on “reasonable accommodation” and reads as follows:
(b) An employer must make a reasonable accommodation to the limitations of an employee or applicant who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. The determination as to whether an employer has failed to make reasonable accommodation will be made on a case-by-case basis.
- Under circumstances where such accommodation will not impose an undue hardship on the operation of an employer’s business, examples of reasonable accommodation may include:
- Making facilities used by employees readily accessible and usable by people with disabilities;
- Job restructuring, part-time or modified work schedules or leaves of absence;
- Acquisition or modification of equipment or devices; and
- Job reassignment and other similar actions.
An employer may be found liable under the LAD and ADA for failing to extend a disabled employee’s leave of absence for a finite period of time to fight and recover from the effects of COVID-19. See generally Boles v. Wal-Mart Stores, Inc., 2014 U.S. Dist LEXIS 41926 * (D.N.J. March 26, 2014).
Protections Provided By the Federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA)
For employees who fit their eligibility requirements as described below, the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA) may provide job security for an employee infected by COVID-19.
Congress enacted the Family Medical Leave Act (FMLA) in 1993 to accommodate the important societal interest of assisting families by establishing a minimum labor standard for a leave of absence from the job for medical reasons. The FMLA applies to companies employing 50 or more employees. It allows an employee who has worked greater than 12 months for a single employer and who had accumulated 1250 hours of service within the previous 12 month period the ability to take up to 12 weeks of leave due to the birth or adoption of a child, in order to care for an immediate family member, for a serious health condition that makes the employee unable to work, and for other qualifying exigencies. Such time can be taken intermittently if taken to care for a family member or due to a serious health condition.
The New Jersey Family Leave Act (NJFLA) was phased in over the course of four years in the early 1990s. The NJFLA also applies to companies employing 30 or more employees. It allows an employee who has worked at least 12 months for a single employer and who had accumulated 1000 base hours of service within the previous 12 month period the ability to take up to 12 weeks of leave due to the birth or adoption of a child, in order to care for an immediate family member. Like FMLA, under the NJFLA leave can be taken intermittently.
The most important difference between FMLA and NJFLA is that an employee does not qualify for NJFLA in order to take care of his or her own serious health condition. Another important difference between these federal and state leave laws is that a person who has had their rights under the NJFLA interfered with or endured retaliation for taking such leave, may recover a more expansive array of damages including all equitable remedies and compensatory damages available under New Jersey’s LAD such as back and front pay economic damages, emotional distress damages, punitive damages and an award of reasonable attorney fees and costs of suit.
Protections Provided By New Jersey’s Paid Sick Leave Act
On October 29, 2018, New Jersey’s Paid Sick Leave Act requiring all public and private employers in the State of New Jersey, regardless of their size, to offer paid sick leave came into effect. The Paid Sick Leave Act will allow employees to accrue one (1) hour of paid sick leave for every thirty (30) hours worked up to a maximum of forty (40) hours of paid sick leave per benefit year. Alternatively, employers are permitted to offer 40 hours of paid sick time or use a paid-time-off (“PTO”) policy if such a PTO policy provides equal or greater benefits to the employee. Employers are also allowed to designate the “benefit year” as any 12-month period but may not modify it without notifying the New Jersey Department of Labor and Workforce Development. To prevent a windfall to employees and financial hardship to employers, there is no provision in the law requiring employers to payout accrued unused sick leave upon termination of an employee absent a company policy to the contrary.
Like other remedial state employment laws such as the LAD and New Jersey’s whistleblowing law known as the Conscientious Employee Protection Act, employers are expressly prohibited from retaliating or discriminating against employees who file complaints with the commission or a court alleging the employer’s violation of the law. “Retaliation” is broadly defined under the statute to not only include actions like demotion, suspension, or refusal to promote, but also other acts, such as threatening to report the immigration status of an employee or family member of the employee.
If you believe your employer fails to accommodate your need for time off to fight and recover from the effects of the COVID-19 virus, immediately call the attorneys at Mashel Law for help at (732) 536-6161 or fill out the contact form on this page. The attorneys at Mashel Law, located in Marlboro, New Jersey, are dedicated to protecting the rights of employees.