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New Jersey Law Prohibits COVID-19-Related Employment Discrimination

On March 20, 2020, New Jersey Governor Phil Murphy signed a new law meant to protect employees who take COVID-19-related leave. New Jersey Assembly Bill 3848 (the Act) provides protections and remedies for such employees and outlines the complaint process for aggrieved individuals. The Act is in direct response to COVID-19 and is meant to protect employees who need to take time off from work because they are or might be infected with COVID-19. The Act was effective immediately.

WHAT SPECIFIC PROTECTIONS DOES THE ACT PROVIDE?

The Act prohibits an employer — during the ongoing Public Health Emergency and State of Emergency originally declared by Governor Murphy in Executive Order 103, and then extended on April 7, 2020 — from terminating or refusing to reinstate an employee who has or is likely to have an infectious disease that requires the employee to miss work. Employees also are protected from retaliation or penalty for requesting or taking a “protected leave.” For an employee’s time off to be deemed “protected leave,” the employee’s leave must be based on the written or electronically transmitted recommendation of a medical professional licensed in New Jersey that the employee take time off for a specified period of time because the employee has or is likely to have an infectious disease that may infect others at the employee’s workplace.

In addition, when an employee’s protected leave period expires, employers must restore the employee to the position the employee held immediately prior to the commencement of the protected leave, with no reduction in seniority, status, employment benefits, pay, or other terms and conditions of employment. If the employer fills the position, then the employee must be reinstated to an equivalent position of like seniority, status, employment benefits, pay, and other terms and conditions of employment.

ARE THERE ANY EXCEPTIONS?

Yes. The Act provides instances in which an employment action may not be retaliatory under the Act, even though the employee is on a protected leave. Those instances are:

  • The employer conducts a reduction in force that would have affected the employee had that person been at work

  • 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.

HOW DO AGGRIEVED INDIVIDUALS FILE A COMPLAINT?

Any complaint filed with the Commissioner of the Department of Labor and Workforce Development that alleges a violation of the Act will be processed in the same manner as a claim for wages filed with the Division of Wage and Hour Compliance, Wage Collection Section, within the Department, under N.J.S.A. 34:11-57 et seq. Under procedures for the processing of a claim for wages in the Wage Collection Section, there is a hearing conducted by a Wage Collection Referee, at which the employer may be summoned, witnesses subpoenaed, oaths administered and testimony taken. Following the hearing, the Wage Collection Referee is empowered to issue a decision and order appropriate remedies.

Under the Act, any hearings of the Division of Wage and Hour Compliance, Wage Collection Section, under this chapter may be conducted remotely with the assistance of technology, such as telephone, web-based video conferencing and submission of documentary evidence by email or text.

The judgment of the Wage Collection Referee may be appealed to the Superior Court by either party upon filing a notice of appeal with the Division of Wage and Hour Compliance, Wage Collection Section, within 20 days of the judgment having been issued.

WHAT ARE THE REMEDIES?

If the Commissioner finds that an employer has violated the Act, the Commissioner may order that the employee be reinstated and assess an administrative penalty of $2,500 against the employer for each violation.

ARE THERE ANY MISCELLANEOUS PROVISIONS?

Yes. The Act relies on the Unemployment Compensation Law at N.J.S.A. 43:21-19(i)(6)(A), (B) and (C), commonly referred to as the “ABC test,” and the case law interpreting and applying the ABC test, to determine whether a complainant is an employee or an independent contractor under the Act.

Note: As referenced above, on April 7, 2020, Governor Murphy signed an Executive Order, renewing the current state of Public Health Emergency for another 30 days. It is now set to expire on May 8, 2020. The Order also keeps all public health–related Executive and Administrative Orders in full force and effect.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.

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About this Author

Janice Sued Agresti Labor & Employment Attorney Faegre Drinker Biddle & Reath Florham Park, NJ
Associate

Janice Sued Agresti advises and represents employers in a broad range of labor and employment matters arising under both state and federal laws. Janice has experience with restrictive covenants, investigations, high-profile matters and employment litigation. Janice also counsels clients with respect to various federal, state and local laws, including matters related to COVID-19.

During law school, she clerked at an established regional law firm and served as a judicial intern for the Honorable David R. Strawbridge, Magistrate Judge for the Eastern District of Pennsylvania, and the...

973-549-7079
Lynne Anne Anderson, Drinker Biddle, Lawyer, Employment Litigation
Partner

Lynne Anne Anderson is a practiced jury and bench trial lawyer who handles a wide range of employment litigation, including whistleblower cases, restrictive covenant disputes and wage and hour class/collective actions. Her litigation background gives her the insights necessary to effectively counsel clients who are dealing with frontline employee issues to effectuate a win-win resolution of workplace disputes, and to implement policies and protocols to limit litigation. Lynne is Co-Chair of the Labor and Employment Group's Fair Pay Act Obligations Team.

Whether providing strategic counseling on reductions in force, or drafting employment contracts and personnel policies, Lynne approaches each situation with sensitivity to the impact to the individuals involved, and on the business operations. Clients trust Lynne implicitly to counsel them through the ever-growing maze of labor and employment laws, and to tenaciously represent their interests in the event of litigation.

Lynne is admitted to practice in the state of New Jersey. 

Court Admissions

  • U.S. Court of Appeals, Third Circuit
  • U.S. District Court, District of New Jersey
  • U.S. District Court, Eastern District of New York
  • U.S. District Court, Southern District of New York

Organizations

  • Academy of New Jersey Management Attorneys (ANJMA)
  • American Bar Association, Labor & Employment Section
  • American Employment Law Council
  • American Health Lawyers Association
  • Diversity Law Institute
  • Litigation Counsel of America, Senior Fellow
  • Morris County Bar Association, Employment & Labor Committee
  • National Association of Women Lawyers (Past Planning Committee member)
  • New Jersey CFO Leadership Council Steering Committee – New Jersey Chapter
  • New Jersey Law & Education Empowerment Project (NJ LEEP), Board of Directors, Chair
  • New Jersey State Bar Association, Employment and Labor Section
  • New Jersey State Bar Foundation, Co-sponsorship Oversight Committee (2011-2017)
  • New Jersey Women Lawyers Association (Past President and Executive Committee)
  • Trial Law Institute
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