An issue facing employees right now is the technicalities related to returning to the workplace. For employees who are back at work, it is unsurprising that situations may arise where the employee is exposed to COVID-19, a family member has COVID-19 or they themselves may catch the virus whether at work or elsewhere. Now the issue becomes, what does the employer do for the 14 days or so that their employee is mandated to stay home? The short answer is that an employer cannot simply fire an employee who has to be out of work due to having to quarantine.
New Jersey Law prohibits COVID-19 related employment discrimination. Under Executive Order 103, Governor Murphy specified that an employer cannot terminate or refuse to reinstate an employee who has or is likely to have an infectious disease that requires the employee to miss work. The employee is also protected from retaliation or penalty for requesting time off for having to quarantine.
In New York, Governor Cuomo enacted the COVID-19 Quarantine Leave Law, the COVID-19 Paid Sick Leave Law and expanded New York’s Paid Family Leave Law (PFL) and Disability Benefit Law. These laws require New York employers to provide job-protected sick leave to employees who are subject to a mandatory or precautionary order of quarantine.
Further, the Families First Coronavirus Response Act (FFCRA) is a federal law that went into effect on April 2, 2020 which provides extended coverage for employees who need to take leave because of COVID-19 by amending the Family and Medical Leave Act of 1993 (FMLA). The Emergency Family and Medical Leave Expansion Act expands coverage to most employees who have to quarantine.
What if my employer violates one of the above provisions?
If your employer fires you for having to quarantine due to COVID-19, there are a few courses of action you can take:
In New Jersey, you have the option to file a claim with the New Jersey Department of Labor and Workforce Development, where they will conduct an investigation and then determine if you should be reinstated to your position and if your employer should be penalized. Alternatively, you could file a lawsuit in the New Jersey Superior Court. Claims filed with the Department of Labor and Workforce Development will be processed in the same manner as claims for wages filed with the Division of Wage and Hour Compliance. There will be a hearing conducted by a Wage Collection Referee and the employer and other witnesses may be required to provide a testimony. The Wage Collection Referee can issue a decision and provide remedies. If the results of the investigation find that the employer acted in violation of any of the COVID-19 laws, the employee may be reinstated, and the employer faces a monetary administrative penalty.
In New York, you may file a claim with the New York State Department of Labor who will conduct an investigation.
Under the FFCRA, Employers in violation of the provisions are subject to the enforcement provisions as well as penalties under the Emergency Family and Medical Leave Act. The employer can be liable for compensatory damages (back pay, lost benefits, front pay, and emotional distress) as well as liquidated damages (double damages), attorneys’ fees and expenses, pre- and post-judgment interest, injunctive relief, and reinstatement.
Lastly, throughout the pandemic, many employers have improved their remote work systems and have allowed their employees to work from home if need be. It is important to familiarize yourself with your employers work from home policy just in case you find yourself in a situation where you must quarantine.