As discussed in Mashel Law’s last blog posting, when a worker stricken with the coronavirus disease (COVID-19), or likely exposed to same, needs to take time off to recover from the effects of the virus or to quarantine themselves from spreading it to family and coworkers, he or she may find job protections under the New Jersey Law Against Discrimination (NJLAD), federal Family and Medical Leave Act, the New Jersey Family Leave Act and the New Jersey Paid Sick Leave Act. Adding to this arsenal of legal relief against an employer who chooses not to provide a worker with medical leave in such a circumstance is the New Jersey Department of Labor and Workforce Development’s (“NJDOL”) recent adoption of temporary emergency new rules to be found at N.J.A.C. 12:70 which will codify New Jersey Governor Phil Murphy’s Executive Order No. 103 (2020) a/k/a the New Jersey COVID 19 Anti-Retaliation Law. These new rules prohibit an employer from terminating or otherwise penalizing an employee for requesting or taking time off from work based on the written or electronically transmitted recommendation of a medical professional licensed in New Jersey stating the employee needs time off for a specified period of time because the employee has, or is likely to have, COVID-19 or any other infectious disease, which may infect others in the workplace.
Proposed new rule N.J.A.C. 12:70-1.3 states that upon the expiration of a period of protected leave, an employee must be restored to the position the employee held immediately prior to the start of the protected leave, with no reduction in seniority, status, employment benefits, pay, or other terms and conditions of employment. Additionally, this new section states that if the employee’s position has been filled, the employer must reinstate the employee returning from protected leave to an equivalent position of like seniority, status, employment benefits, pay, and other terms and conditions of employment.
Proposed new rule N.J.A.C. 12:70-1.4 prohibits an employer from discharging or in any way retaliating against or penalizing any employee because the employee requests or takes protected leave. Concurrently, the rule also addresses situations where failure of an employer not to reinstate an employee would not be deemed retaliatory if: (1) the employer conducts a reduction in force that would have affected the employee had that person been at work; or (2) the employee would have been impacted by the good faith operation of a bona fide layoff and recall system, including a system under a collective bargaining agreement that would not entitle the employee to reinstatement to the former or an equivalent position. The remedies available for a violation of the New Jersey COVID 19 Anti-Retaliation Law is limited to the commencement of an administrative action before the NJDOL seeking reinstatement to the same or equivalent position. A potential fine of up to $2,500 can also be assessed against a violating employer.
Also providing additional protections to the workers of our State impacted by the pandemic is Governor Murphy’s Executive Order 107 (recently extended by Executive Order 109) which seeks to use all available resources of the State government to reduce the rate of community spread of the virus. To do this, Executive Order 107 directs New Jersey residents to stay at home to the greatest extent possible. Executive Order 107 is wide ranging and mandates in part that nonessential retail, recreational, entertainment businesses as well as nonessential construction projects must be closed until further order of the Governor. As far as non-retail businesses is concerned, they may stay open under Executive Order 107 but must accommodate their workforce to the extent practicable by permitting telework or work-from-home arrangements and must abide by enhanced mitigation requirements. If your employer is violating Executive Order 107, you may report violations to the NJDOL by filling out a form found at https://covid19.nj.gov/forms/violation
If a worker can perform their job remotely, Executive Order 107 makes clear the employer must permit work from home. The specific language of the order further states that, “all businesses or non-profits in the State whether closed or open to the public, must accommodate their workforce, wherever practicable, for telework or work-from-home arrangements. For purposes of this order, “telework” means the practice of working from home or alternative locations closer to home through the use of technology that equips the individual to access necessary materials”. If working remotely is an accommodation an employer can reasonably provide an employee, yet the employer fails to do so, then makes things worse by firing or otherwise penalizing the employee for not reporting to the employer’s “brick and mortar” office or facility, the employer may reasonably be said to have violated the laws, rules and public policy of the State of New Jersey. Under such a circumstance, an employee may have the right to pursue a lawsuit under New Jersey’s whistleblowing laws known as the New Jersey Conscientious Employee Protection Act, N.J.S.A., 34:19-1 to 8 (CEPA). A worker who suffers retaliation from an employer for reporting the employer’s failure to adhere to OSHA’s COVID-19 guidelines (https://www.osha.gov/Publications/OSHA3990.pdf) may also have the right to pursue a CEPA claim. CEPA allows for a wide variety of damages and remedies, including reinstatement to your job, lost wages and employee benefits, damages for emotional distress and punitive damages. In addition, an employee can recover his or her attorneys’ fees from the employer.
Neither New Jersey’s COVID 19 Anti-Retaliation Law, Executive Order 107 and its regulatory analogs, nor CEPA, protects an employee who works for an essential business or exempted non-essential business who cannot perform their job remotely, but does not want to report to work for fear of contracting the virus from coworkers and bringing the pestilence home to their loved ones. However, if a worker’s fear of catching the COVID-19 virus becomes debilitating, then the worker may be afflicted with a Generalized Anxiety Disorder or some other mental health disease. Under such a circumstance, the worker would need to provide the employer with a note from a medical or mental health professional provider stating the worker cannot report to work because he/she is temporarily disabled due to a mental health affliction. Thereafter, it would be incumbent upon the employer under the NJLAD to provide the worker with medical leave as a form of reasonable accommodation. See generally N.J.A.C., 13:13-2.5.
If you are concerned your employer has caused you harm by violating New Jersey law in its handling of COVID-19 pandemic, call the attorneys at Mashel Law at (732) 536-6161 for help 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.