Complying With Harassment, Discrimination And Retaliation Laws And Policies During The COVID-19 Pandemic
Last updated March 20, 2020
As noted in our previous client alert regarding Employers' Best Practices for Managing Responses to the Coronavirus, during these challenging times, employers need to remember, and comply with, their harassment, discrimination and retaliation policies, as well as applicable federal, state and local laws. These laws require employers to provide a workplace that is free from harassment and discrimination based upon an individual’s actual or perceived protected characteristics. Consequently, employers should remind their employees that strict adherence to these polices and laws is required at all times, including during this global pandemic. Such a reminder has become necessary as there have been a growing number of complaints of harassment targeting individuals of certain national origins, ethnicities and religions regarding the outbreak and spread of COVID-19, as well as harassment against individuals with actual or perceived disabilities arising from COVID-19.
As with any complaint of harassment that is made, if an employee makes a complaint of discrimination or harassment relating to COVID-19, the employer must take the complaint seriously, promptly investigate the complaint and take appropriate action to remedy the situation. Also, the employer may not retaliate by taking any adverse employment action against the employee for making such a complaint or raising any other concerns relating to COVID-19. Similarly, an employer cannot take any adverse employment against an employee who is, or is perceived to be, positive for COVID-19.
Earlier this week, in response to questions regarding, among other things, COVID-19 related harassment and discrimination, New Jersey Attorney General Gurbir S. Grewal and the Division on Civil Rights issued guidance expressly stating that New Jersey’s anti-discrimination law, the Law Against Discrimination, extends to situations involving COVID-19 in the workplace. The guidance emphasized that employers cannot terminate an individual’s employment based upon a positive diagnosis of COVID-19 or the employer’s perception that the employee may have COVID-19.
The New Jersey Legislature took things a step further on March 19 when Senate passed several bills aimed at helping employers and employees through the COVID-19 crisis. One such bill, Assembly Bill 3848, prohibits an employer, during the Public Health Emergency and State of Emergency declared by the Governor concerning the COVID-19 pandemic, from terminating or refusing to reinstate an employee that requests or takes time off from work based on a recommendation from a medical professional, because the employee has, or is likely to have, an infectious disease which may infect others at the employee’s workplace. Another bill, Assembly Bill 3846, creates a “Temporary Lost Wage Unemployment Program” that allows individuals affected by COVID-19 to make a claim for lost wages, and assists employers in paying wages to employees ordered under quarantine. Both of these bills are awaiting the Governor’s approval.
For additional information pertaining to the coronavirus outbreak, please visit CSG's COVID-19 Resource Center.
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