Category: Employee Leaves

New Jersey Legislature, Bill No. 3848 – “An Act concerning time off from work in connection with infectious disease”

Michael O’B. Boldt

On March 20, 2020, New Jersey Governor Phil Murphy signed into law Bill No. A-3848, prohibiting employers, during the pending COVID-19 Emergency, from terminating or otherwise penalizing employees who request or take time off from work for a specified period based on the recommendation of a New Jersey medical professional “because the employee has, or is likely to have, an infectious disease . . . which may infect others at the employee’s workplace.”  Employers also are required to reinstate such employees to  “the position held when the leave commenced with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment” following the recommended period of time off. 

A-3848 is one of more than 20 bills passed by the New Jersey Legislature in response to the COVID-19 pandemic.

Notably, the bill does not define “employer” or “employee.” Further, A-3848’s prohibition on adverse employment action based on a request for time off applies only “during the Public Health Emergency 8 and State of Emergency declared by the Governor in Executive 9 Order 103 of 2020 concerning the coronavirus disease 2019 10 pandemic . . . .”  This limitation does not appear to apply to the prohibition on refusing to reinstate an employee who has taken leave. Thus, unlike other laws requiring an employer to provide medical leave, the bill does not appear to limit the length of time the employee may be off from work and still be entitled to reinstatement, other than to a “specified period of time” recommended by the medical professional.

Also notably, the medical professional’s leave recommendation need not relate to COVID-19, but rather any “infectious disease, as defined [in N.J.S.A. 26:13-2], which may infect others at the employee’s workplace.”  N.J.S.A. 26:13-2 broadly defines “infectious disease” to “mean[] a disease caused by a living organism or other pathogen, including a fungus, bacteria, parasite, protozoan, virus, or prion. An infectious disease may, or may not, be transmissible from person to person, animal to person, or insect to person.”    While this definition encompasses both communicable and non-communicable infectious diseases, the bill limits coverage to those diseases which “may infect others in the employee’s workplace.” 

It is important to note that in providing protection for both employees who have, and are “likely to have,” an infectious disease, the Legislature apparently intended to cover employees who have been exposed to a such a disease and have not received test results, but in the judgment of a medical professional are nonetheless likely to be infected.

A-3848 provides that an employee alleging violation of the statutory protections may file a written complaint with the New Jersey Commissioner of Labor and Workforce Development or file suit in court “to seek reinstatement to employment.”  If a violation is proven, “the court or the commissioner shall order the reinstatement the employee to the position previously held with no reduction in seniority, status, employment benefits, pay, and other terms and conditions of employment and fine the employer $2,500 for each violation . . . .”

Please do not hesitate to contact us should you have any questions.

Considerations Before Terminating An Employee On Medical Leave

Vimal K. Shah

Among the most frequent calls we management-side employment lawyers receive are from clients asking whether they may lawfully terminate an employee who has been on an extended leave for medical reasons. Usually, the call comes just after the client has received a doctor’s note from the employee advising that he is unable to return to work by the previously-planned return-to-work date, and requires several more weeks off. The client’s frustration is palpable; in an exasperated tone, she often notes that the employee is a marginal performer anyway, and clearly implies that she wants to hear only five words from us — “It is okay to terminate.”

Not so fast. Whether an employer can safely terminate an employee on medical leave depends on the answers to several critical questions.

An obvious, but sometimes overlooked, issue is has the employee exhausted his leave allotment under the federal Family and Medical Leave Act (“FMLA”), and any parallel state or local leave law, and under the employer’s policies?  Under the FMLA, an employee is entitled up to twelve weeks of unpaid leave annually for (among other reasons) his own serious health condition. Some states’ laws and some companies’ policies provide for more leave.  If the employee has not exhausted his leave entitlement under each, the employer generally should not terminate.

Another critical question is, has the employer correctly handled the employee’s leave up to now? At the start of the leave, the FMLA requires that the employer expressly tell the employee that it is designating the employee’s absence as FMLA leave and is counting each day or week of absence against the employee’s twelve-week allotment. Further, where the employee has provided at least an estimated length of his leave, the employer must also tell the employee the amount of leave it will designate as FMLA leave, how much of the leave allotment will remain at the leave’s expected conclusion, and the date by which it expects the employee to return. If the employer has not documented its compliance with each of these notice requirements, the employer probably should not terminate.

Assuming the employee has exhausted each of his leave entitlements and the employer has provided all required notices, the next question is, has the employer asked the employee whether he requires a workplace accommodation? Under the federal Americans With Disabilities Act (“ADA”) and its parallel state disability laws, an employer must engage in a dialog (known as the “interactive process”) with any employee it has reason to know may be disabled and who may need a workplace accommodation. Through this process, the employer must determine whether the employee wants an accommodation, and if so, whether there exists some reasonable accommodation that would enable the employee to perform the essential functions of his job. Where, as in the above scenario, an employee has been absent for his own medical condition for a significant period, the employer should initiate this interactive process. If the employer has not done so, it should probably not terminate.

And even if the employer has engaged in the interactive process, it should only terminate if it has concluded, after having consulted with counsel, that no reasonable accommodation is possible. Note that in the scenario presented here, where the employee’s doctor has advised that the employee requires a few more weeks off work, the client may have to grant the extended leave, because a leave extension beyond the FMLA’s twelve-weeks is often considered a reasonable accommodation.

So if the client can’t terminate the employee now, what can it do? First, it should continue to carefully track and document the employee’s absences, and keep the employee apprised of any amount of leave remaining. Second, it should consider asking the employee for a re-certification of his FMLA leave, which it is permitted to do every thirty days. Third, the client should engage in the interactive process to determine possible accommodations which would allow the employee to return to work. Only if the employee is still unable to return to work after having been given or offered a reasonable accommodation should the client consider terminating the employment. Because the reasonableness of a requested accommodation – including a leave extension — depends on the circumstances, the client should consult with counsel before taking this step.