Can Employees in NJ be Fired for Missing Work Due to COVID-19?
Founder of Agrapidis & Maroules Law, Evans Agradipis Shares the Answer
As if worrying about their health and the health of their family members, friends, neighbors was not enough of an exhausting concern, there is another reason why people in New Jersey are finding it hard to sleep at night: they are afraid of losing their job for missing work due to COVID-19.
“The good news is that employees in New Jersey are legally protected from being terminated if they miss work due to COVID-19,” commented Evans Agrapidis, an experienced personal injury and accident lawyer based in Jersey City, New Jersey, and a founding member of the law firm Agrapidis & Maroules, P.C.
The legislation that Evans Agrapidis refers to is N.J.A.C. 12:70, which was enacted on March 20, 2020 and prohibits any employer from terminating or punishing an employee who takes time off work, or requests to take time off work, because in a qualified medical professional’s determination that individual has or is likely to have COVID-19.
“The definition of a qualified medical professional is a doctor, physician assistant, advanced practice nurse, or registered nurse who is licensed to work in New Jersey,” commented Evans Agrapidis, whose areas of specialization include representing clients who have been injured in fall down cases, motor vehicle accidents, work-related accidents, construction site accidents, and a wide variety of other personal injury categories. “In addition, it is up to the medical professional to recommend the period of isolation. The written or electronic recommendation is then forwarded to the employer.”
State Job Protection
The job protection — which is only in effect during the pandemic and related public health emergency and state emergency — applies to full-time workers, part-time workers, and temporary workers. It does not apply to independent contractors. With this being said, some individuals who are classified as an independent contractor are in fact employees, because they have many or sometimes all of the same roles, responsibilities and routines as employees. Independent contractors who believe that they are misclassified, and should therefore be entitled to the same protections available to employees under N.J.A.C. 12:70, should file a claim with the NJDOL’s Division of Wage and Hour Compliance. A Wage Collection Referee then intervene and uses a set of standard criteria to make a determination.
It is also important to note that N.J.A.C. 12:70 does not protect employees from being terminated or punished for missing work in order to care for a family member who has COVID-19. However, employees who face this difficult situation may be entitled to protections under the New Jersey Earned Sick Leave Law, New Jersey Family Leave Act, or Federal Families First Coronavirus Response Act, respectively.
Furthermore, employees who lose their jobs during COVID-19 as a result of reduction in workforce, or the good faith operation of a bona fide layoff and recall system (including one under a collective bargaining unit), are not entitled to reinstatement under N.J.A.C. 12:70. However, such employees maintain all of their rights under applicable layoff and system recall.
“Employees who are obligated to miss work due to COVID-19 because they are determined by a qualified medical professional to be sick — regardless of their symptoms — will not have their recall rights damaged in any way if they are subsequently laid off,” commented Evans Agrapidis, who was admitted to the New Jersey State and New Jersey Federal Bars in 1983, the New York State and New York Federal Bars in 1985, and is currently a member of the Bar of the U.S. Supreme Court. “Basically, it will be as if they had not taken the protected leave.”