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The Division on Civil Rights (DCR) has published FAQs for the public about New Jersey residents’ rights and protections against discrimination and bias-based harassment related to the “monkeypox” virus, as well as information on how to file a civil rights complaint with DCR if members of the public are victims of discrimination.
The FAQs address frequently asked questions about discrimination and harassment related to human hMPXV, commonly known as the “monkeypox” virus, and the protections that New Jersey’s Law Against Discrimination (LAD) affords those infected with hMPXV.
NJ’s LAD prohibits discrimination and harassment based on actual or perceived disability.
The FAQs make clear that if any individual has any physical infirmity – such as flu-like symptoms, swollen lymph nodes, exhaustion, muscle aches, headache, sore throat, nasal congestions, cough, and/or a rash that often begins on the face and spreads to other parts of the body – caused by hMPXV (Monkeypox), that infirmity would qualify as a disability under NJs LAD.
LAD also prohibits discrimination and harassment based on other protected characteristics including sexual orientation, gender identity, and gender expression – all of which remains true in regard to hMPXV.
The Division on Civil Rights FAQs also address discrimination and harassment related to monkeypox at work, at home, and in public places of accommodation.
General FAQs:
What protections does LAD offer?
The LAD prohibits discrimination and harassment based on actual or perceived race, religion, national origin, gender, sexual orientation, gender identity, gender expression, disability, and other protected characteristics.
The law applies to employment, housing, and places of public accommodation (generally, places open to the public, including businesses, restaurants, schools, summer camps, medical providers, etc.).
Under the LAD, an employer, housing provider, or place of public accommodation must not discriminate and must take action to stop such harassment if it knows or should have known about it.
Is hMPXV a disability under the LAD?
Yes. The LAD defines disability as, among other things, any “physical...infirmity...which is caused by...illness[.]” hMPXV is an infectious disease caused by a virus and would constitute an illness.
Thus, if you have any physical infirmity, such as flu-like symptoms, swollen lymph nodes, exhaustion, muscle aches and backache, headache, sore throat, nasal congestion, cough, and/or a rash that often begins on the face and spreads to other parts of the body, caused by hMPXV, that will qualify as a disability under the LAD.
Does LAD protect me from discrimination and harassment related to contracting hMPXV?
Yes. (see above)
Does the LAD protect me from discrimination and harassment related to hMPXV?
Yes. The LAD protects you against discrimination based on disability, which would include a physical infirmity caused by hMPXV, though regulated employers, housing providers, and places of public accommodation may be permitted to take reasonable steps to protect others from hMPXV or to comply with public health requirements.
In addition, the LAD protects you from discrimination and harassment based on actual or perceived race, religion, national origin, gender, sexual orientation, gender identity, gender expression, and other LAD-protected characteristics in employment, housing, and places of public accommodation, including when the conduct at issue stems from concerns related to hMPXV.
Employment:
What are the LAD’s protections related to hMPXV in employment?
An employer cannot discriminate against you because of your actual or perceived race, national origin, religion, disability, sexual orientation, gender identity, gender expression, or another LAD-protected characteristic.
The LAD also prohibits bias-based harassment that creates a hostile work environment. Your employer must take reasonable steps to stop harassment if they knew or should have known about it, regardless of whether the harasser is a coworker or supervisor and regardless of whether the harassing conduct takes place in the office or electronically.
These protections apply even when the conduct at issue stems from concerns related to hMPXV.
My coworker repeatedly harasses me by claiming that gay people “caused” hMPXV. Does my employer need to do something?
Yes. The LAD prohibits harassment based on actual or perceived sexual orientation, gender identity, and gender expression that creates a hostile work environment. Your employer must take reasonable steps to stop harassment if they knew or should have known about it, regardless of whether the harasser is a coworker or supervisor and regardless of whether the harassing conduct takes place in the office or electronically.
Can my employer send me home from work if I have symptoms of hMPXV?
Yes. Relying on public health guidance, such as guidance from the Centers for Disease Control and Prevention or from the New Jersey Department of Health, if an employee is experiencing hMPXV symptoms, such as flu-like symptoms, swollen lymph nodes, exhaustion, muscle aches and backache, headache, sore throat, nasal congestion, cough, and/or a rash that often begins on the face and spreads to other parts of the body, it may be appropriate for an employer to send an employee home or require them to stay home if they report that they are symptomatic or have contracted the virus.
Under the LAD, when an employee is sent home because they have or are perceived to have a disability related to hMPXV, an employer must provide reasonable accommodations to the employee (such as allowing them to telework or providing them with time off from work) unless doing so would impose an undue hardship on the employer’s operations.
I have hMPXV. What reasonable accommodations can I ask for from my employer under the LAD?
If you have any physical infirmity, such as flu-like symptoms, swollen lymph nodes, exhaustion, muscle aches and backache, headache, sore throat, nasal congestion, cough, and/or a rash that often begins on the face and spreads to other parts of the body, caused by hMPXV, your employer must provide you with reasonable accommodations to enable you to do your job, unless doing so would impose an undue burden on their operations.
Safety—your safety as well as the safety of your coworkers, clients, and customers—is a factor in evaluating whether a potential accommodation would be reasonable. However, an employer must base its decisions regarding any potential safety hazard on objective, scientific evidence, including evidence reflected in policies and guidance from federal, state, and local authorities, and not on unfounded assumptions or stereotypes.
Thus, if you have any physical infirmity caused by hMPXV or are recovering from hMPXV, your employer must provide reasonable accommodations to you unless doing so would impose an undue hardship on their operations.
Providing time off so that you can get treatment for hMPXV or isolate during your recovery in accordance with public health guidance, such as guidance from the Centers for Disease Control and Prevention or from the New Jersey Department of Health, and/or allowing you to telework would be reasonable accommodations as long as they would not impose an undue burden on your employer’s operations.
Housing:
What are the LAD’s protections related to hMPXV in housing?
A housing provider cannot discriminate against you because of your actual or perceived race, national origin, religion, disability, sexual orientation, gender identity, gender expression, or other LAD-protected characteristics. These protections apply when the conduct at issue stems from concerns related to hMPXV.
For example, your landlord or building manager cannot refuse to make necessary repairs to your apartment because they say you are gay, and they are afraid of contracting hMPXV. A landlord or building manager also could not refuse to rent a property to you based on these reasons.
The LAD does not prohibit a landlord from taking reasonable steps to protect the landlord or other tenants from hMPXV, but such reasonable steps would not include actions premised on stereotypes based on sexual orientation, gender identity, or gender expression.
The LAD also prohibits harassment based on your actual or perceived race, national origin, religion, disability, sexual orientation, gender identity, gender expression, or other LAD-protected characteristics. A housing provider must take action to stop harassment based on these characteristics where such harassment creates a hostile environment, and the housing provider knows or should have known about it.
In those circumstances, a housing provider must take action to stop harassment even when that harassment comes from another tenant.
So, for example, if another tenant repeatedly posts notes on your apartment door demanding that you move out because you are gay and “going to infect everyone in the building with monkeypox,” the LAD requires your landlord to take action to stop the harassment if they know or should have known about it.
Public Accommodation:
What are the LAD’s protections related to hMPXV in places of public accommodation, including schools?
Under the LAD, a place of public accommodation cannot discriminate against you because of your actual or perceived race, national origin, religion, disability, sexual orientation, gender identity, gender expression, or other LAD-protected characteristics.
The place of public accommodation also must take action to stop harassment based on these characteristics if they know or should have known about it, including when the harassment comes from another patient, customer, or student.
These protections apply when the conduct at issue stems from concerns related to hMPXV.
So, for example, if a student repeatedly told your teen that your teen must have (or must have had) hMPXV because your teen is bisexual, the school could be liable if you reported the harassment and the school did not investigate or take action.
Similarly, if a store patron sees that you are wearing an LGBTQIA+ pride shirt and starts screaming that “Gays are spreading monkeypox,” the LAD requires the store to take action to stop the harassment.
What are the LAD’s protections related to medical facilities and hMPXV?
Medical facilities must ensure they do not discriminate based on actual or perceived race, national origin, religion, disability, sexual orientation, gender identity, gender expression, or other LAD-protected characteristics in their provision of services, including the provision of tests or care related to hMPXV.
For example, it is unlawful for a medical facility to refuse an individual treatment for hMPXV, or for any other illness because they are transgender.
In addition, to ensure they are not discriminating on the basis of national origin or disability, medical facilities may need to provide qualified interpreter services to ensure effective communications with individuals with limited English proficiency and individuals who are deaf or hard of hearing.
I have hMPXV but need to obtain groceries or pharmaceuticals. What are my rights under the LAD?
The LAD requires places of public accommodation (including grocery stores and pharmacies) to provide reasonable accommodations to a customer or patron with a disability, including a disability related to hMPXV unless doing so would be an undue burden on their operations.
Thus, under the LAD, a grocery store or pharmacy must make a contact-free method of obtaining goods available to a person with hMPXV unless doing so would be an undue burden on their operations.
Retaliation:
I would like to make a LAD complaint, but I am worried that my employer or housing provider will retaliate against me. What should I do?
The LAD prohibits retaliation against a person for complaining about discrimination or bias-based harassment, or otherwise exercising or attempting to exercise their rights under the law.
For example, an employer cannot fire someone for reporting hMPXV-related harassment to human resources. And a housing provider cannot evict someone for reporting housing discrimination to DCR.
Bias Incidents:
I witnessed a bias/hate crime on a sidewalk in my town. What should I do?
If you’ve witnessed or experienced a bias/hate crime, you should report that incident to law enforcement immediately by calling 911 or your local law enforcement agency.
You also may report a bias incident to the NJ Attorney General’s Office online HERE, via email to NJBIAS@NJDCJ.org, or by calling the Bias Hotline at 800-277-BIAS (2427).
New Jersey Family Leave Act:
Who is protected by the New Jersey Family Leave Act (NJFLA)?
To be eligible for the protections available under the NJFLA, you must work either for a state or local government agency or for a company or organization with 30 or more employees worldwide.
In addition, you must have been employed by the agency or company for at least 1 year and have worked at least 1,000 hours in the past 12 months.
Click HERE to learn more about the NJFLA.
What protections does the New Jersey Family Leave Act offer?
Eligible employees generally can take up to 12 weeks of job-protected leave during a 24-month period to care for a family member, or someone who is the equivalent of family, or who has a serious health condition (including a diagnosis of hMPXV).
When you return to work, you are generally entitled to return to the same position you held before leave, and your employer may not retaliate against you because you took or attempted to take leave under the NJFLA.
When can I take job-protected NJFLA leave related to hMPXV?
If your family member, or someone who is the equivalent of family, has hMPXV and you are eligible for the protections of the NJFLA, you can take job-protected leave to take care of them.
You cannot take leave under the NJFLA based on your own hMXPV diagnosis.
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