New Jersey Law Protects Employees Who Must Take Time Off Because of COVID-19 and Issue Executive Order Limiting Business Operations
After passing through the legislature unanimously in a matter of days, on March 20, 2020, Governor Murphy signed a law providing additional employee protections related to COVID-19. The law is effective immediately and prohibits employers from terminating or retaliating against an employee who requests or takes time off because the employee has, or is likely to have, an infectious disease. The law also provides reinstatement rights. The next day, Governor Murphy issued Executive Order 107 (EO 107), which limits certain business operations in the state, among other directives.
On March 9, 2020, pursuant to Executive Order No. 103, New Jersey Governor Phil Murphy, declared both a Public Health Emergency and State of Emergency in New Jersey due to the COVID-19 pandemic. Based on the language of the law, it appears to only apply during the Public Health Emergency and State of Emergency declared in this executive order.
Effective immediately, the law prohibits an employer from terminating or otherwise penalizing 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. The document must be a recommendation that the employee take 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.
Upon the employee’s return to work, the employer must reinstate the employee to the previously held position when the leave started. The employer cannot reduce the employee’s seniority, status, employment benefits, pay or other terms and conditions of employment.
The law allows employees to file a written complaint with the Commissioner of the Department of Labor and Workforce Development or initiate an action in a court of competent jurisdiction for reinstatement. If it is found by a preponderance of evidence that the employer violated the law, the employer will be ordered to reinstate the employee back to his or her previous position with no reduction in the employee’s seniority, status, employment benefits, pay or other terms and conditions of employment. The Commissioner or the Court will impose a $2,500 fine on the employer for each violation.
The very next day, March 21, 2020, Governor Murphy signed EO 107 issuing a statewide stay at home order and closing all non-essential retail businesses. The Order provides a list of retail businesses that may remain open and mandates that all businesses or non-profits, wherever practicable, accommodate their workforce for telework or work-from-home arrangements. To the extent a business or non-profit has employees that cannot perform their functions via telework or work-from-home arrangements, the business or non-profit should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue. New Jersey issued additional guidance on EO 107 which states that “[e]mployees reporting to work are permitted to travel to and from their place of business,” and that “[b]usinesses are encouraged to give each employee a letter indicating that the employee works in an industry permitted to continue operations.
Employers should understand the requirements and effect of EO 107 on their business, as well as their obligations under the new law enacted by the State of New Jersey. As legal issues regarding COVID-19 continue to evolve, it is essential that employers stay up to date on any new requirements. Due to the number of reports regarding potential violations of EO 107, the State of New Jersey has created an online form to report an employer, organization, or entity that may be violating any part of EO 107. Should you have any questions, or if you would like to discuss how this new law may impact you, please contact your regular Saul Ewing Arnstein & Lehr labor and employment attorney.