UPDATE: On August 10, 2020, the NJDOL formally adopted the temporary rule without change.
On March 20, 2020, New Jersey Governor Phil Murphy signed legislation (“Law”) prohibiting employers from taking any adverse employment action against employees who take, or request, time off due to an infectious disease that could affect others at work based on a written recommendation of a New Jersey licensed medical professional. The Law, which we summarized in a previous article, became effective upon enactment.
On April 1, the New Jersey Department of Labor and Workforce Development (“NJDOL”) adopted temporary emergency new rules implementing the Law and concurrently proposed the same rules for permanent adoption. The regulations, which became effective upon their emergency adoption, are codified at N.J.S.A. 12:70 (the “Regulations”).
The Regulations define several of the terms used in the Law, including, of most significance, “protected leave,” which is defined as:
leave from work taken by an employee during the Public Health Emergency and State of Emergency declared by the Governor in Executive Order No. 103 (2020) concerning the COVID-19 pandemic, based on the written or electronically transmitted recommendation of a medical professional licensed in New Jersey 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 that may infect others at the employee’s workplace.
More substantively, the Regulations reiterate that an employee returning from protected leave must be reinstated 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. The Regulations, however, also provide that if the 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.
Finally, the Regulations address those instances in which an employment action may not be retaliatory under the Law, even though the employee took protected leave. Specifically, reinstatement is not required and failure to reinstate will not be considered retaliatory if: (i) the employer conducts a reduction in force that would have affected the employee had that person been at work; or (ii) 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 remainder of the regulations primarily address remedies under the Law and the Regulations, in particular, reinstatement of the aggrieved employee to the same or an equivalent position and potential fines of $2,500 for each violation.