It is important for employees to understand new and existing laws during this difficult time. I have highlighted here some key items:
Assembly Bill 3848 Enacted into Law
An employer shall not terminate or penalize an employee who takes time off for a specified period based on the written recommendation of a health care professional licensed in New Jersey because the employee has or is likely to have Coronavirus which may infect others in the workplace. The recommendation should be communicated to the employer and be transmitted electronically.
Telework: Governor’s Executive Order 107
Your employer must accommodate you, where practicable, to work from home or alternative locations. If the work cannot be performed from an alternate location, a business or not for profit should make best efforts to reduce the workforce to the minimal necessary to accomplish essential functions. Reinstatement After Isolation from Quarantine Recent legislation in New Jersey provides that any person who has been placed in isolation or quarantine and who at the time of quarantine or isolation was employed, shall be reinstated to their employment at the same status, seniority and job status, unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so. Employees must apply for reemployment within 90 days after being released from isolation or quarantine. If an employer violates this provision by failing or refusing to reinstate the employee, then that employee can retain a private attorney to bring an action under this state statute to demand reinstatement, payment of lost wages and benefits and attorney fees. N.J.S.A. 26:13-16.
It is unlawful for your employer to base its decisions regarding layoff, termination, or furlough on prejudice. An adverse job action should not be based on age, race, disability, gender, sexual orientation, pregnancy, religion, national origin, color, marital status, veteran status, or your membership in other protected class categories violates your civil rights. Likewise, it is unlawful to fail to discuss or dismiss out of hand a reasonable accommodation of a disability related to COVID- 19.
Hostile Work Environment Harassment
Being harassed for having or being perceived as having COVID-19 or because of your membership in a protected class is illegal. Unfortunately, Asian-Americans have been the target of racist comments, assaults, and workplace discrimination arising from the COVID-19 outbreak. Throughout the U.S. Asian-Americans have experienced hateful language, bigotry, and even brutal attacks because of the relationship to the outbreak source in Wuhan, China. Such harassment creates a hostile work environment and should not be permitted by employers.
NJ Whistleblower Retaliation
If you have objected to, disclosed, or refused to participate in an activity that you reasonably believed violated the law or a clear mandate of public policy, it would
be unlawful for your employer to select you to be fired, laid off, furloughed or have your pay or hours reduced because you complained. This would also include your employer choosing to take an adverse employment action against you because you objected to a policy or practice that you reasonably believe violated a new law, order, or other state, federal or local requirement relating to COVID-19. OSHA requirements are an example of such laws. Such adverse actions on the part of employers constitute violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34-19-1 et seq.
Interference, Discouragement or Retaliation in Violation of Federal and State Civil Rights Statutes
Employers must comply with laws, such as the Family & Medical Leave Act (“FMLA”), the Occupational Safety and Health Administration (“OSHA”), the New Jersey Family Leave Act (“NJFLA”), the Worker Adjustment and Retraining Notification (“WARN Act”), the Fair Labor Standards Act (“FLSA”), the NJ Wage Theft Act and other NJ the Wage & Hour laws and regulations. Employers are prohibited from interfering, discouraging, or retaliating against employees who invoke the protections of these laws. Such prohibited employer actions include suspension demotion, reduction of pay or firing based on employees using these laws.
Retaliation for Raising Complaints of Fraudulent Billing the Government for Medical Supplies and equipment.
The Federal and New Jersey False Claims Acts protect employees, consultants, contractors and agents who report to their employer or managers any company
conduct that would constitute a fraud on the Federal or State government. Examples of such fraud during the pandemic include: double billing of Medicare or Medicaid patients; sales of defective products (e.g. PPEs, masks, hand sanitizer, etc.) to the government; refusing to follow an illegal order by an employer to up- code; billing of Medicare or Medicaid patients for unnecessary medical services and tests; and kickback schemes for unnecessary tests and services billed to Medicare or Medicaid.
Common Law Breach of Contract/Good Faith and Fair Dealing
Employers do not have the right to breach your employment contract, or to stop paying you a bonus or commissions that you have already earned due to business disruptions caused by the Coronavirus pandemic. Likewise, employers cannot retroactively change your salary or other compensation. If you have already earned your salary and/or have become vested in your bonus or incentive plans, employers cannot withhold those funds from you. They are also obliged under New Jersey law to treat you in good faith and to deal with you fairly with regard to your employment contract.
If you have an employment problem or question, call the Law Offices of David Rostan at (973) 520-8301, in the Morristown area, or if you are in the Westfield area, the Law Offices of Fred Shahrooz Scampato at (908) 301-9095.