New Jersey Makes it Unlawful for Employers to Terminate Employees Who Miss Work Due to Any Infectious Disease
By: Robert W. Small
March 23, 2020 - 4:38 PM
Employers of New Jersey workers should be aware that effective March 19, 2020, New Jersey has enacted a new law that makes it unlawful for any Employer to terminate or refuse to reinstate an employee who has taken time off work upon the recommendation of a medical professional due to any infectious disease. The law obviously applies to COVID-19, but goes well beyond that virus and will govern Employer actions well after the current emergency ends unless repealed, which seems unlikely given New Jersey’s recent rash of employee-favorable legislation. The law applies to any “infectious disease” caused by “a living organism or other pathogen, including a fungus, bacteria, parasite, protozoan, virus or poison, which may or may not be transmissible from person to person, animal to person, or insect to person.” (Emphasis supplied.)
In the words of the statute, an Employer may not “terminate or otherwise penalize an employee if the employee requests or takes time off from work based on the written or electronically transmitted recommendation of a medical professional licensed in New Jersey that the employee takes that time off for a specified period of time because the employee has, or is likely to have, an infectious disease…which may infect others at the employee’s workplace.” (Emphasis supplied.) Some caveats. The law does not appear to require that the written notice be given before the employee takes time off. An Employer is prohibited not merely from terminating a covered employee but from, in any other way, penalizing that employee. Conceivably, a loss of seniority, being placed on a different shift, or altering job assignments could be a penalty unless the Employer has a demonstrable proper reason for the change, and that reason is the sole reason for the change. Second, the employee must give written notice. An Employer need not rely on the employee’s say so. The notice must be from a ”medical professional,” which would seem to cover a nurse practitioner or even a mental health counselor, but the medical professional must be licensed in New Jersey. The notice must state a specific time period for the employee’s absence.
The law permits an employee who believes an Employer has violated the law to file a complaint either with the New Jersey Department of Labor and Workforce Development or bring a private action in court. Employers who violate the law are subject to a $2,500 fine, but the Act does not obligate the Employer to pay the employee’s legal fees or costs.
Employers who terminate employees for legitimate economic reasons do not violate the law so long as, in selecting employees for termination, an Employer does not discriminate against employees who have taken time off for reasons protected by the law. New Jersey Employers should bear in mind that the new law is an addition to protections under the New Jersey Law Against Discrimination, which prohibits discrimination by an Employer based on any “infirmity” of an employee. The penalties under the LAD are substantial and include the payment of the employee’s attorneys’ fees and costs of a successful lawsuit. Under recent Guidance from the New Jersey Attorney General, termination of an employee (or any other adverse job action) based on an unreasonable suspicion that the employee has COVID-19 would be a violation of the LAD.