On March 20, 2020, Governor Murphy signed anti-retaliation legislation (A3848) into law, which prohibits employers from taking 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 recommendation of a licensed medical professional in New Jersey. On April 1, NJDOL (Department of Labor) adopted temporary emergency new rules implementing the anti-retaliation law and concurrently proposed the same rules for permanent adoption. The rules are codified at N.J.A.C. 12:70.
The rules define many terms used in the anti-retaliation law, the most significant of which is the term “protected leave.” As defined in N.J.A.C. 12:70-1.2, “protected leave” means:
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.
Significantly, the rules reiterate the anti-retaliation law’s reinstatement requirement, which provides that an employee returning from protected leave must be reinstated to the position the employee held immediately prior to taking protected leave, with no reduction in seniority, status, employment benefits, pay, or other terms and conditions of employment. See N.J.A.C. 12:70-1.3. If an employees’ position has been filled while he or she was on protected leave, 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. Id. See N.J.A.C. 12:70-1.5 (listing the aforesaid as permissible administrative remedies under the anti-retaliation law).
Furthermore, the rules address instances where an adverse employment action is not considered retaliatory under the anti-retaliation law, notwithstanding the fact that the employee took protected leave. An employee is not entitled to reinstatement and an employer’s failure to reinstate is not considered retaliatory if: (1) the employer conducts a reduction in force that would have affected the employee had that person been at work; or (2) 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. N.J.A.C. 12:70-1.3.
Lastly, the rules provide the employer is subject to an administrative penalty of $2,500 for each violation. N.J.A.C. 12:70-1.5. The remaining rules address the process by which an aggrieved employee may file a complaint against an employer.