Last month, the New Jersey Division on Civil Rights (DCR) released a guidance addressing frequently asked questions regarding the novel coronavirus (COVID-19). Specifically, the DCR focused on protections and obligations under the New Jersey Law Against Discrimination (NJLAD).
Protections in Employment
The NJLAD prohibits discrimination and harassment based on actual or perceived race, religion, national origin, gender, sexual orientation, gender identity or expression, disability, and other protected characteristics in employment, housing, and places of public accommodation. It also requires an employer, housing provider, or place of public accommodation to take action to stop such harassment if it knows or should have known about it.
The DCR emphasized the protections apply even if the conduct at issue stems from COVID-19-related concerns and offered the following examples to illustrate:
In employment, it is unlawful for your employer to fire you because you coughed at work and they perceive you have COVID-19, which is characterized as a disability under the law. Additionally, if an employee of east-Asian heritage is harassed by a coworker claiming that Asian people caused COVID-19 or calling the virus “the Chinese virus,” an employer who knows or should have known about the harassment must take action to stop the conduct.
Furthermore, the NJLAD’s prohibition on retaliation against a person for complaining about discrimination or bias-based harassment will be extended to conditions related to COVID-19. In addition, an employer cannot fire an employee for reporting COVID-19-related harassment to HR.
In housing, landlords or building managers cannot refuse to rent a property or refuse to make necessary repairs to your apartment because of race or national origin-based stereotypes.
For example, a landlord or building manager cannot refuse to rent or refuse to make repairs because they say you are east Asian and they are afraid of contracting COVID-19. Further, a housing provider cannot evict a tenant for reporting COVID-19-related discrimination to the DCR.
Places of Public Accommodation
Places of public accommodation (defined to include businesses, restaurants, schools, summer camps, medical providers, etc.) must take action to stop harassment even if it comes from another patient, customer, or student.
For example, if a student repeatedly tells another classmate she must have the coronavirus because she is from China, the school could be liable for not investigating or taking action if it knew or should have known about the harassment.
Similarly, a bus driver must take reasonable steps to stop harassment when someone on a public bus perceives another rider as being Jewish and screams, “Jews are spreading the virus.”
Additionally, medical facilities are prohibited from discriminating based on national origin or disability in their provision of services, including the provision of interpreter services and services related to mobility impairments.
New Jersey Family Leave Act Coverage
The DCR’s guidance also addresses leave entitlements and benefits available to COVID-19-affected employees under the New Jersey Family Leave Act (NJFLA). Under the Act, employers with 30 or more employees must permit an eligible employee to take up to 12 weeks of job-protected leave during any 24-month period.
The DCR has specifically stated that a permissible reason to take leave for a family member (or someone who is the equivalent of family) with a serious health condition includes “a diagnosis of COVID-19.” Employees returning from NJFLA leave are entitled to return to their same position, and retaliation for taking NJFLA leave (even for a COVID-19-related condition) is prohibited.
Although COVID-19 is novel, there are laws already in place that establish protections, obligations, and benefits relevant to the pandemic. The DCR makes it clear that COVID-19-related issues are afforded the same protections under the NJLAD and the NJFLA as any other discrimination or retaliation claim and must be addressed in the same manner.
We will continue to monitor and update COVID-19 guidance as it emerges.
For more information regarding best practices for proactively avoiding and defending discrimination and retaliation claims, please contact John C. Petrella, chair of Genova Burns LLC’s employment litigation practice group, or Dina M. Mastellone, chair of the firm’s human resources counseling and compliance practice group, at 973-533-0777.