NJ Employers Can't Fire Workers Over COVID-19 Symptoms

By Bill Wichert
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Law360 (March 19, 2020, 1:34 PM EDT) -- New Jersey employers are barred under state law from firing workers based on perceived coronavirus symptoms, and they must take reasonable action to stop related harassment between employees, such as one worker telling another with East Asian heritage that the disease is "the Chinese virus," the state Attorney General's Office said Thursday.

Amid the global coronavirus pandemic, the attorney general's office issued a guidance stating that the protections afforded by the state's Law Against Discrimination extend to situations involving COVID-19 in the workplace, housing, medical facilities and other places of public accommodation.

"COVID-19 is no excuse for racism, xenophobia or hate," Attorney General Gurbir S. Grewal said in a statement.

"Discrimination and harassment in violation of New Jersey law remains illegal even if it occurs against the backdrop of a global pandemic. Now, more than ever, we should recognize that we're all in this together," Grewal added. "Words and actions that divide us won't make any of us safer or stronger."

Addressing a series of "frequently asked questions," the guidance touched on LAD protections dealing with coronavirus-related concerns in employment, saying "your employer cannot fire you because you coughed at work and they perceived you to have a disability related to COVID-19."

"And if you have East Asian heritage and a co-worker repeatedly harasses you by claiming that Asian people caused COVID-19 or calling this 'the Chinese virus,' your employer must take reasonable action to stop the harassment if they knew or should have known about it," according to the guidance.

The guidance also noted that, under the LAD, employers can't fire a worker for reporting coronavirus-related harassment to their human resources department.

In the housing context, the LAD prohibits a landlord or building manager from refusing to rent a property or make needed repairs to an apartment because "they say you are East Asian and they are afraid of contracting COVID-19," the guidance said.

"The LAD does not prohibit a landlord from taking reasonable steps to protect the landlord or other tenants from COVID-19, but such reasonable steps would not include actions premised on stereotypes based on race or national origin," the guidance said.

Among the LAD protections related to places of public accommodation, the guidance said medical facilities have to make sure they don't discriminate based on national origin or disability in providing services. Those efforts could include providing qualified interpreter services to people with limited English proficiency and those who are deaf or hard of hearing, as well as "planning for the needs of individuals with mobility impairments," the guidance said.

Rachel Wainer Apter, director of the state Division on Civil Rights, said in Thursday's statement, "We must not let ignorance or fear around COVID-19 lead to stereotyping and prejudice."

"COVID-19 does not discriminate based on race, national origin, religion, or disability," Wainer Apter said. "Yet there have been disturbing reports of discrimination and harassment targeting Asian people and people with actual or perceived disabilities, as well as other racial and religious discrimination arising from COVID-19."

The guidance further addressed how protections under the New Jersey Family Leave Act apply to caring for loved ones suffering from the coronavirus.

Under that statute, eligible workers generally may take up to 12 weeks of job-protected leave during any yearlong period to care for a family member or "someone who is the equivalent of family" who has been diagnosed with COVID-19, according to the guidance.

After the guidance was issued, the state Senate on Thursday passed a series of bills aimed at benefiting workers and businesses amid the ongoing public health crisis.

Each of the measures was approved Monday by the state Assembly, and the bills now head to Gov. Phil Murphy for his approval. The governor previously declared a state of emergency and public health emergency in connection with the coronavirus.

The legislation included A.B. 3848, which would prohibit employers during the state of emergency and public health emergency from firing a worker who requests or takes time off because the employee has or is likely to have an infectious disease. The employer also would be barred from refusing to reinstate the worker to his or her previous position.

"We would never want an employee to go to work when they're ill — especially with a communicable disease like the novel coronavirus — and risk the health of themselves and others," one of the bill's sponsors, Assemblywoman Yvonne Lopez, D-Middlesex, said in a statement.

"At the same time, no one should ever be let go because they become severely ill, particularly during a worldwide pandemic," Lopez added.

Another measure, A.B. 3846, would create the "Temporary Lost Wage Unemployment Program" to help people affected by the pandemic to recoup their lost wages and to assist employers that pay workers who are ordered under quarantine as a result of the coronavirus.

A third measure, A.B. 3845, would authorize the New Jersey Economic Development Authority to provide grants to businesses during periods of emergency declared by the governor and for "the duration of economic disruptions" as a result of that emergency.

Three sponsors of the legislation, Assemblymen Roy Freiman, D-Somerset, Louis Greenwald, D-Camden, and Ronald Dancer, R-Ocean, said in a statement:

"As we work to protect residents from the COVID-19 virus influence on our state, we have to think about the small business community, who rely on their customers to frequent their stores. These businesses will be adversely affected by the need for many to stay indoors and potential quarantines. Providing access to loans will give small businesses an additional resource they can use to maintain their operations and pay their employees as we get through the days ahead."

--Editing by John Campbell.

Update: This article has been updated with information about legislation passed by the New Jersey Legislature in connection with the coronavirus pandemic.

For a reprint of this article, please contact reprints@law360.com.

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