PBN - Employment Law - Year in Review 2020 Edition

Employment Law

A Year In Review - 2020 Edition

This year, our Year in Review contains an extensive compilation of articles on discrimination, wage and hour, accommodations, and other COVID-19 and workplace issues. We recommend employers to tune into Porzio’s updates for the latest changes and review their policies and practices to ensure compliance with all federal, state, and local laws. If you have any questions or we can otherwise help in any way, please feel free to reach out to a member of the Employment Law Team.

Contents Accommodation Requests • •

Implementing Workplace Accommodations During COVID-19: What Employers Do and Don’t Have to Do 4 Returning to Work Amid COVID-19: What Employers Should Know About Assessing And Accommodating At-Risk Employees 7

COVID-19 Government Restrictions • •

All New Jersey Employers Must Comply With Latest COVID-19 Executive Order The Legal Impact of the Coronavirus On Your NJ and NY Business

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Discrimination •

Old Rules, “New Normal” 16

Leave Entitlements • • • • •

DOL Releases New Back-to-School FFCRA Guidance 17 Federal Court Severs Portions of Department of Labor Rules on FFCRA/EPSLA Leave 21 New Jersey Expands Leave and Insurance Benefits To Employees Impacted by COVID-19 22 Leave Entitlements Arising from COVID-19 24 The Fate of the FFCRA: Mandatory Paid Leave For Employees Impacted By COVID-19 Will Become Voluntary In 2021 Under The Consolidated Appropriations Act

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Marijuana •

Federal Illegality Be Damned - Employer Compulsory Reimbursement For Employee-Workers’ Compensation Medical Marijuana Use 30

National Labors Relation Act • •

The NLRB Sets the Stage for a Sea of Change in Employment Practices for 2020 32 Overruled: the NLRB Restores Employers’ Rights 35

Reductions in Force • •

What Employers Need to Consider When Recalling Furloughed Workers Challenges for New Jersey Employers Facing COVID-19 Related Workforce Reductions

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Return to Work Guidance • • • • •

Private Employers Have Flexibility in Implementing Compulsory COVID-19 Vaccination Policies, but Should Exercise Caution 41 Employers Should Plan Proactively to Address the Inc reased Risk of COVID-Related Claims Under The Conscientious Employee Protection Act 44 “The Road Back” for Stage 2 and Federal Paid Leave Considerations 47 OSHA Enforcement Guidance for Recording Cases of COVID-19 Goes Into Effect Today, May 26, 2020 50 Lessons Learned From Walmart: Best Practices For Employers Regarding COVID-19 Preparation and Communication 52

Wage and Hour • •

Guidance Released on New Jersey’s Equal Pay Act NJ Passes Significant Employment Laws Aimed At Providing Additional Protections For Employees

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Implementing Workplace Accommodations During COVID-19: What Employers Do and Don’t Have to Do Employment Law Monthly – September 2020 Authored by Janelle Edwards-Stewart Employers have known for some time the necessity of providing reasonable accommodations to employees with disabilities. For most employers, since the establishment of the Americans with Disabilities Act (“ADA”) in 1990, providing these accommodations has become routine, if not simple. As a result, “accommodations” and “individuals with disabilities” have come to fit together like the proverbial “lock” and “key.”

This has changed in the era of COVID-19. Accommodations are no longer exceptional arrangements made to assist a handful of workers with disabilities. With fears of COVID-19 looming large, droves of employees, disabled and non-disabled alike, have been seeking accommodations, most often in the form of remote work, in order to isolate from others. As a result, in some workplaces, accommodations are exceptions that have begun to rival the rule. Typical office settings long have adapted to a majority of workers working remotely. However, for businesses and organizations whose work requires employees to be onsite primarily, the recent surge in requests for remote work accommodation is proving a substantial impediment to resuming operations. When faced with record numbers of accommodation requests and/or when attempting to resume onsite operations while a significant proportion of employees seek to remain offsite, what is an employer to do?

1. DO KNOW AND OBEY THE LAW. Employees with Disabilities The ADA applies to employers with over 15 employees and prohibits discrimination against individuals with disabilities. A disability is defined as a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment. When an employee with a disability makes his/her need for a reasonable accommodation known to the employer (unless the need is obvious), the employer should engage the employee in the interactive process to arrive at a reasonable accommodation that will permit the employee to perform his/her essential job functions.

In the era of COVID-19, the process for arriving at a reasonable accommodation has not changed. The employer still must recognize the accommodation request, then appropriately solicit information to determine whether an employee has a disability.1 If it is established that an employee has a disability, the employer must explore possible accommodations with the employee, implement, and then monitor the chosen accommodation.

What has changed during the pandemic is the volume and type of accommodation requests many employers are receiving, as well as the status of the requestor. At this time, many employers are fielding more accommodation requests than ever before; a large proportion of the requests seek remote work or leave; and a large proportion of the requests, a majority in many instances, are from non-disabled employees. Must these non-disabled employees be accommodated as well?

2. DO LEARN AND IMPLEMENT THE GUIDANCE, TO THE EXTENT PRACTICABLE. While employers must provide reasonable accommodations to employees with disabilities, the Equal Employment Opportunity Commission (“EEOC”) has “encouraged” employers to “be creative” and to offer “accommodation and flexibilities” to non-disabled persons who the Centers for Disease Control (“CDC”) has determined “to be at higher [or increased] risk” of severe illness2 in the event they contract COVID-19 as well as non-disabled persons who the CDC has determined “might be at higher [or increased] risk” of severe illness in the event they contract COVID-19.

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What has changed during the pandemic is the volume and type of accommodation requests many employers are receiving, as well as the status of the requester.

6 Employees at “Higher” or “Increased” Risk The CDC has determined that persons age 65 and over and/or persons with any of the following underlying medical conditions are at higher or increased risk:3 • Cancer; • Chronic kidney disease; • COPD (chronic obstructive pulmonary disease); • Immunocompromised state(weakened immune system) from solid organ transplant; • Obesity (body mass index “BMI” of 30 or higher); • Serious heart conditions, such as failure, coronary artery disease, or cardiomyopathies; • Sickle cell disease; and • Type 2 diabetes mellitus.

While the CDC has deemed individuals age 65 and over to be at higher risk for a severe case of COVID-19, employers must be mindful.

While they are free to provide accommodation and flexibility to workers age 65 and over — even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison — they may not go so far as to involuntarily exclude an individual from the workplace based on his or her being 65 or older, even for the benevolent purpose of protecting the individual due to his/her higher risk. At the same time, neither the ADA nor the Age Discrimination in Employment Act (“ADEA”) include a right to a reasonable accommodation for older workers due to age. Put plainly, the EEOC encourages “maximum flexibilities” for this group of at-risk workers.

It encourages accommodation and, seemingly standard, flexibility for all others at-risk.

Employees Who Might be at “Higher” or “Increased” Risk The CDC has determined that smokers, as well as persons with the following underlying medical conditions, might be at higher or increased risk:4 • • • • •

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Asthma (moderate-to-severe); Cerebrovascular disease (affects blood vessels and blood supply to the brain); Cystic fibrosis; Hypertension or high blood pressure; Immunocompromised state (weakened immune system) from blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines; Neurologic conditions, such as dementia; Liver disease; Pregnancy; Pulmonary fibrosis (having damaged or scarred lung tissues); Thalassemia (a type of blood disorder); and Type 1 diabetes mellitus.

The EEOC’s encouragement is similar here. Employers who are able should be flexible in attempting to accommodate employees who might be at higher risk.

3. DO NOT FEEL COMPELLED TO IMPLEMENT EVERY ACCOMMODATION REQUESTED, PARTICULARLY WHERE THERE IS AN UNDUE HARDSHIP. Although popular, remote work is just one of many possible accommodations employers can consider, since employees have no entitlement to any specific accommodation. Employers, thus, are encouraged to review an array of accommodations, including additional or enhanced protective gowns, masks, gloves, or other gear. Possible accommodations also may include additional or enhanced protective measures, such as erecting a barrier that provides separation between employees or an employee and the public. Another possible accommodation may be the elimination or substitution of certain “marginal” functions (i.e., incidental job duties, as distinguished from the “essential” functions of a particular position). Accommodations also may include temporary modification of work schedules or physical relocation to a more remote area within the facility.

7 Notwithstanding the broad array of available accommodations, it still is the case that an employer need not accommodate a nondisabled employee or provide an accommodation that poses an “undue hardship.” Factors considered in determining undue hardship include the following: • • • • • •

the nature and cost of the accommodation needed; the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and the impact of the accommodation on the operation of the facility.

This always must be a careful and individualized assessment.

TAKE AWAY: In the broader analysis, what has emerged from a review of relevant anti-discrimination laws and health-related guidance is something approaching a tiered system of accommodation. Federal statute continues to compel employers to provide reasonable accommodations to disabled employees. Meanwhile, federal agency guidance recommends that employers treat employees, who are and who may be particularly vulnerable to COVID-19, similar to disabled employees, to the extent the employer is able. Neither disabled nor non-disabled employees are entitled to a specific accommodation nor one that presents an undue hardship.

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A COVID-19 diagnosis is not, in and of itself, a disability, giving entitlement to reasonable accommodation. Rather, the disability determination associated with a COVID-19 diagnoses will depend

on the severity of the employee’s symptoms. If medical information and/or response to inquiry indicate a severe COVID-19 experience, the employee should be deemed to have a disability warranting reasonable accommodation.

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The CDC has explained that severe illness means that the person with COVID-19 may require hospitalization, intensive care, or a ventilator to help them breathe, or they may even die.

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This CDC list is current as of September 2, 2020 (list last revised by CDC on July 17, 2020).

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This CDC list is current as of September 2, 2020 (list last revised by CDC on July 17, 2020).

Returning to Work Amid COVID-19: What Employers Should Know About Assessing And Accommodating At-Risk Employees Employment Law Monthly - July 2020 Authored by Melanie D. Lipomanis By now, employers are well-informed that employees with underlying health conditions are at greater risk for developing serious medical complications if they contract COVID-19, and that these employees’ medical conditions might warrant accommodations when returning to work under the Americans With Disabilities Act (ADA) and state anti-discrimination laws. Employers need to be prepared when their doors re-open to accommodate these employees and implement policy to safeguard their operations from potential lawsuits.

The Centers for Disease Control and Prevention has identified the following underlying medical conditions that place an employee in the at-risk category: (1) age (65 and over; (2) severe obesity; (3) asthma; (4) heart conditions; (5) diabetes; (6) kidney or liver disease; and (7) an immunocompromised condition caused by a variety of factors, including cancer treatment, smoking, and certain immune weakening drug therapies and medical conditions. The broad scope of identified underlying medical conditions means most employers will face the dilemma of handling at-risk employees returning to work as businesses reopen and resume operations.

8 In May, the Equal Employment Opportunity Commission (EEOC), issued guidance for employers for at-risk employees. The guidance provides that if an employee does not request an accommodation for his or her medical condition upon returning to work, “the ADA does not mandate that the employer take action.” However, an employer cannot remove an employee from the workplace based on knowledge of the underlying medical conditions. The ADA expressly precludes an employer from excluding an employee from the workplace, or taking any other adverse action, based solely upon the employee’s known underlying medical condition, unless the employer determines the condition poses a “direct threat” to the employee’s health “that cannot be eliminated or reduced by reasonable accommodation.” The “direct threat” is an affirmative defense under the ADA and, as the EEOC cautions, it is a high standard to meet.

Once an employee has self-identified as having an underlying medical condition, and we caution employers from acting on any perceived condition absent the employee’s request for accommodation, the employer must perform a “direct threat analysis” to determine if an at-risk employee’s health would be endangered upon returning to work. The analysis must include an “individualized assessment based on a reasonable medical judgment” regarding the employee’s underlying condition and whether a reasonable accommodation can mitigate risk to the employee. For an at-risk employee returning to work amid COVID-19, a direct threat means “significant risk of substantial harm” to the employee’s own health from exposure to others. In conducting this multi-step analysis, an employer should “consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.” Where the employee’s underlying medical condition is not obvious or already known, an employer may ask for additional information or request medical documentation from the employee’s medical provider to determine whether the employee’s medical condition necessitates an accommodation, either the one he or she requested or any other.

An employer can consider additional factors when conducting a direct threat analysis: (1) the prominence of COVID-19 infection in the geographical area; (2) the nature of the employee’s essential job duties; (3) frequency of exposure to others in performing those duties; and (4) how well the employee’s underlying health condition is managed.

Even where an employer determines a direct threat to an employee exists, it may not exclude the individual from the workplace or take any other adverse action against the employee unless it determines no reasonable accommodations can be offered to the employee that do not pose an undue hardship on the business.

We recommend employers engage in the interactive process with an employee with a known underlying medical condition in performing its individualized assessment of the risk posed to the employee for COVID-19 exposure. The EEOC advises that employers may implement reasonable accommodations in the workplace such as erecting physical barriers or moving the employee’s work station, providing personal protective equipment, modifications to work schedules, telecommuting, or eliminating or reducing marginal job duties, to limit exposure to the employee.

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All New Jersey Employers Must Comply With Latest COVID-19 Executive Order Client Alert – October 2020 Authored by Matthew J. Donohue In response to the surging number of COVID-19 infections throughout New Jersey, Governor Philip Murphy imposed new requirements for every employer (i.e. all businesses, non-profits, governmental and educational entities) pursuant to Executive Order #192.

Effective November 5th at 6:00 AM EST, all employers with employees physically present in the workplace must enact new protocols, which include, but are not limited to, enforcing social distancing and mask usage of all individuals, conducting daily health checks of employees, and immediately sending home any employee that appears to have COVID-19 symptoms. Some employers may already be in compliance with these new requirements, but the Executive Order now imposes new fines and penalties on all individuals and employers who fail to comply. Below please find a breakdown of Executive Order #192 to help you effectively navigate this new law.

Pursuant to Executive Order #192, employers with employees present in the workplace must, at a minimum: 1.

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require masks and social distancing of all individuals present; provide masks to employees and sanitation materials to all individuals; enforce the practice of regular hand-hygiene; clean and disinfect “high-touch areas”; conduct daily health checks of employees; immediately separate and send home “employees that appear to have COVID-19 symptoms”; notify all employees of any known exposure to COVID-19 at the worksite; and clean and disinfect the worksite if/when an employee has been “diagnosed with COVID-19.”

The Order permits almost all employers1 to remove any employee, customer or visitor who refuses to wear a face mask unless the individual meets one or more of the limited exceptions (e.g., individual is under two years of age; individual is eating or drinking at the establishment; individual has a disability that prevents them from wearing a mask, etc.). However, the Order expressly prohibits those same employers from demanding medical documentation from a customer or visitor that claims to have a disability. All employers can now also adopt policies that require employees to wear gloves, but the gloves must be provided at the employer’s expense.

The New Jersey Department of Labor and Workforce Development, in consultation with the New Jersey Department of Health, are now required to establish protocols to receive complaints and investigate employers who are alleged to be out of compliance with this new Order. Violations of the Order shall be considered disorderly persons offenses, which can result in fines up to $1000.00 and up to six (6) months of incarceration. Moreover, any employer that fails to adhere to the Order may be subject to closure by the Department of Health.

Employers must act quickly to ensure they are fully compliant with this Order no later than November 5, 2020 at 6:00 AM EST. Should you require any assistance interpreting the new protocols, revising policies, or have any questions regarding the Order, the Porzio team would be happy to assist you.

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The provisions of Executive Order #192 related to requiring mask usage, denying entry to individuals without masks, and prohibiting employers from seeking medical documentation from visitors claiming to have

disabilities do not apply to employers “subject to Executive Order No. 175” (i.e. all public, private, renaissance, and charter schools). However, the provisions of Executive Order #175 already require mandatory use of face coverings by all staff, students, and visitors except for those that meet the limited exceptions included in Executive Order #175.

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The Legal Impact of the Coronavirus On Your NJ and NY Business

Client Alert - March 2020 Authored by Kerri A. Wright & Eric L. Probst

We are living in uncertain and unprecedented times, and businesses are not exempt from the impact of the COVID-19 virus. Government shutdowns and workforce restrictions have left business owners guessing as to whether their companies are “essential” or “non-essential,” and can remain open under lockdowns imposed by state governments. Recent Executive Orders by state governors Murphy and Cuomo identify the “essential” industries and business that can remain open during the lockdowns provided the businesses follow workplace distancing practices.

Porzio has created guides that outline those businesses in New Jersey and New York deemed “essential.”

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Discrimination and disability laws remain in full effect and employers must keep them in mind when asking employees to work remotely, or potentially to return to the workplace amid heightened safety concerns.

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Old Rules, “New Normal” Employment Law Monthly - May 2020 Authored by Thomas J. Reilly Most employers have settled into maintaining a virtual workforce. It’s now time to begin to plan for a tentative return to the workplace. Whether virtual or in returning to the office, it is important to remember that the laws that govern “the workplace” -- discrimination, disability, and other laws -- remain in full force and effect. Employers must be mindful of how those rules apply to the unique and unprecedented dynamics that will continue to affect the workplace for the foreseeable future.

Discrimination And Disability Laws Discrimination and disability laws remain in full effect and employers must keep them in mind when asking employees to work remotely, or potentially to return to the workplace amid heightened safety concerns.

For purposes of working remotely or choosing which employees will physically return to the facility first, employers may not treat employees differently on the basis of any protected characteristic. For example, asking only those over a certain age or those with underlying health conditions to continue to work from home, “for their own good,” will not be permissible.

Employers also should ensure that employees receive any necessary reasonable accommodations in accordance with the Americans with Disabilities Act and, in New Jersey, the New Jersey Law Against Discrimination, such as ensuring that employees who have a disability receive special equipment or technology in order to enable them to work from home. Employers should also re-evaluate the employee’s ongoing technology need upon the employee’s return to the facility.

Currently, being diagnosed with COVID-19 does not place one in a protected category for purposes of disability or other laws. At the same time, employers should protect against employees engaging in any form of stigma against a person who either has, or is suspected of having, COVID-19. Employers should also be mindful that aspects of the condition, however, may qualify an employee for treatment as a disabled person.

As to the other members of the workforce, the EEOC had advised that federal law does not prohibit employers from taking certain precautions to protect the workplace. Employers may thus lawfully take the following actions: (1) measure an employee’s body temperature, (2) question employees about symptoms, (3) require employees to leave the workplace and stay home if they have symptoms, and (4) require a doctor’s note showing fitness for duty before the employee returns to work. Employers should know that an employee’s temperature and other health information must be kept confidential. Employers who intend to implement any of the above workplace safety measures should provide advance notice to employees through early policy development.

Workplace dynamics/Sexual harassment Employees generally will be more difficult to monitor when they are teleworking and so employers should take extra steps to ensure employees are following policies, such as by holding regular teleconferences, reminding employees of company policies, and encouraging supervisors regularly to check in with workers.

Particularly with regard to sexual harassment, remote working blurs the line between the workplace and home, and can sometimes cause unprofessional behavior such as employees not being fully or appropriately dressed during virtual meetings or discussing more intimate details about their lives in their professional communications. It is important for employers to know that sexual harassment can take place off work premises and during non-work hours. Parrish v. Sollecito, 249 F. Supp. 2d 342 (S.D.N.Y.

17 2003) (sexual harassment alleged to have occurred at funeral of employee’s family member); Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) (sexual harassment alleged to have occurred at dinner party). It also can occur through text messaging and social media. https:// www.eeoc.gov/eeoc/newsroom/release/8-30-12.cfm. Accordingly, employers should require employees to maintain professional attire and behavior during remote work functions such as video conferences and virtual happy hours, and remind employees that sexual harassment can extend beyond the physical workplace.

Return to Work Even after the employer’s workforce returns, employers should continue to adhere to federal, state, and local guidance regarding appropriate protective measures. An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols). However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves for employees with latex allergies, modified or “clear” face masks to aid deaf or hard of hearing employees who rely on lip reading, or modified gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII of the Civil Rights Act and the New Jersey Law Against Discrimination (e.g., modified equipment due to religious apparel), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business. https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm Takeaway In sum, employers should continue to be vigilant in observing applicable laws and policies, even while most or all of their workforce continues to work from home. Employers should also be proactive in developing, now, new workplace protocols and polices that will ensure general workforce safety and by identifying the new accommodations needs of individual employees.

DOL Releases New Back-to-School FFCRA Guidance Client Alert – September 2020 Authored By Kerri A. Wright & Thomas J. Reilly On August 27, 2020, the U.S. Department of Labor released new guidance regarding the Families First Coronavirus Response Act (FFCRA) in a question and answer format. The guidance was released to address various questions regarding teleworking, remote learning, and other issues that are sure to surface as schools open throughout the country.

School Closures The guidance confirms that a child’s school or place of care is “closed” for purposes of the FFCRA if it has moved completely to distance or virtual learning and the “physical location” is closed. For schools that create “hybrid” programs whereby the school is open on certain days, and virtual learning takes place on other days, an employee is “eligible to take paid leave under the FFCRA [only] on days when [the employee’s] child is not permitted to attend school in person and must instead engage in remote learning.”

Schools that give parents the option of having their children either physically attend school or engage in remote learning are

not considered “closed” for purposes of the FFCRA. So long as the child has the option of physically attending school, the school is “open” and an employee cannot take expanded family leave to care for that child. If the school currently is under a remote learning program but may later reopen for physical attendance, the school is considered “closed” for FFCRA purposes unless and until it permits in-person instruction.

Additionally, employees cannot take family leave to care for a child whose school has closed if that child is over the age of 18, unless the child has a disability and cannot care for him or herself due to that disability.

Leave Under Existing Policies An employer may not require employer-provided paid leave to run concurrently with — that is, cover the same hours as — paid sick leave under the Emergency Paid Sick Leave Act. However, the guidance states that employers may require employees to take paid leave under an existing paid leave policy concurrent with expanded family leave under the EFMLEA “[a]fter the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA.” In

18 to telework or take leave until the employee personally has tested negative for COVID-19 infection. However, the employer may not require the employee to telework or be tested for COVID-19 simply because the employee took leave under the FFCRA. Therefore, it appears that an employer must be able to point to additional information suggesting COVID exposure and would be wise to document that additional information if the employer takes any action other than reinstating the employee to his or her prior position.

Recordkeeping Whenever an employee requests leave, the employer must keep a record of the following items: other words, for an employee who is taking expanded family leave for the closure of a school or childcare provider, the employer is limited to the following: 1. First two weeks: Cannot run other paid leave concurrently.

2. Remaining ten weeks: May run other paid leave concurrently. However, the employer cannot require the employee to use medical or sick leave under an employer policy if the employee (or covered family member) is not ill. Under this guidance, it would be permissible to require the employee to use available vacation or PTO days for this remaining ten weeks of leave.

Employees With COVID-19 Symptoms The Department of Labor also provided guidance on employees who “self-diagnose.” The guidance provides that employees “may not take paid sick leave under the FFCRA if [they] unilaterally decide to self-quarantine for an illness without medical advice, even if [they] have COVID-19 symptoms.”

The guidance also confirms that employees are not permitted to take paid sick leave under the FFCRA if they become ill with an illness not related to COVID-19.

However, many states, including New Jersey, New York and Massachusetts, provide paid sick leave that would cover other non-COVID illnesses.

In cases where an employee is returning from leave, an employer might have concerns that the employee has been exposed to COVID-19 and potentially could infect other employees. In general, an employee returning from paid sick leave under FFCRA has a right to be restored to the same or an equivalent position. However, where the employer has a legitimate fear of COVID-19 exposure, the employer may temporarily reinstate the employee to an equivalent position requiring less interaction with co-workers, or require that the employee telework. An employer also may require any employee who knows he or she has interacted with a COVID-infected person

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the name of the employee requesting leave; the date(s) for which leave is requested; the reason for leave; and a statement from the employee that he or she is unable to work because of the reason.

If an employee requests leave due to a quarantine order from a government entity or on the recommendation of a medical professional to self-quarantine, the employer should document the name of the government entity and/ or medical provider.

If an employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, the employer must also document the following: 1. the name of the child being cared for; 2. the name of the school, place of care, or child care provider that has closed or become unavailable; and 3. a statement from the employee that no other suitable person is available to care for the child.

19 Employees requesting leave are required to provide all of the information listed above. Additionally, employees who claim to have symptoms of COVID-19 and are taking leave to obtain a diagnosis may be required by the employer to provide a list of symptoms and the date on which a test or medical exam will take place.

Relation to Other Forms of Leave The guidance makes it clear that expanded family leave is FMLA leave. If an employer was covered by the FMLA prior to April 1, 2020, an employee’s eligibility for expanded family leave depends on how much leave the employee already had taken during the 12-month period that the employer uses for calculating available FMLA leave. An employee may take 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If an employee has taken some, but not all, of the 12 workweeks of leave available under FMLA during the current 12-month period determined by the employer, the employee may take the remaining portion of leave available. If the employee already has taken 12 workweeks of FMLA leave during this 12-month period, the employee may not take additional expanded family and medical leave.

In general, an employee may not take FFCRA leave if the employee is receiving workers’ compensation or temporary disability benefits, unless the employee returned to light duty before taking leave. An employee also is not permitted to take FFCRA leave if the employee is on a mandatory leave of absence. However, the employer may end a voluntary leave of absence and begin taking paid sick leave or expanded family leave.

Intermittent Leave As schools around the country open in varying degrees, employers are faced with employees who have childcare issues because their children only are in school two or three days each week and, sometimes, only for half-days. The Department of Labor previously had advised that FFCRA leave (both sick leave as well as the expanded family leave) could be taken intermittently only

if the employer were to allow it. However, a recent federal court decision out of New York struck down this provision, essentially holding that employees must be permitted to take the FFCRA leave intermittently. A more detailed discussion regarding this decision can be found in one of our previous COVID-19 resource articles.

Instead of revising its regulations to comply with this decision, it appears that the Department of Labor has doubled-down on its prior guidance. In issuing this expanded list of questions and answers, the Department of Labor again notes that an employee can take intermittent family leave or paid sick leave while teleworking, provided the “employer allows it.” The guidance also states that intermittent leave may be taken in “any increment,” provided the employer and employee agree.

The rules are quite different for employees who are physically present in the workplace. First, with regard to paid sick leave, employees physically present in the workplace must use intermittent paid sick leave only “in full day increments,” and paid sick leave cannot be taken intermittently if taken pursuant to a quarantine order, to care for someone who is either subject to a quarantine order or who was advised to self-quarantine, or where the employee has symptoms of COVID-19 or is caring for someone with symptoms. In such cases, paid sick leave must be used either until it is exhausted or the employee no longer has a qualifying reason to take paid sick leave. In contrast, employees may take paid sick leave intermittently — but again, only in full day increments — if the employee is taking paid sick leave to care for a child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons.

Furthermore, the employer must agree and grant permission in order for an employee to take intermittent paid sick leave.

Employees who physically are present in the workplace also are permitted to take intermittent family leave, but again, must receive the employer’s permission. The “full day increment” requirement is not mentioned with regard to family leave taken by employees who are physically present in the workplace. It is therefore unclear if this requirement applies to family leave, or only to sick leave.

Conclusion In sum, the Department of Labor’s new guidance provides important clarifications and new information regarding implementation of the FFCRA that will be important as schools continue to open throughout the country. At this point, it is recommended that you review your leave policies to ensure compliance with this recent update. The Department of Labor also may release further guidance in the next several months before the FFCRA expires at the end of the year. Porzio will continue to keep you updated in this area.

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Employees no longer are required to provide documentation prior to utilizing EPSLA paid leave nor does an employee need to obtain an employer’s consent to take intermittent leave.

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Federal Court Severs Portions of Department of Labor Rules on FFCRA/EPSLA Leave Client Update - August 2020 Authored by Matthew J. Donohue On August 3, 2020, the United States District Court for the Southern District of New York (“SDNY”) ordered the United States Department of Labor (“USDOL”) to remove several restrictions imposed on employees seeking to utilize paid leave under the Families First Coronavirus Response Act (“FFCRA”) and Emergency Paid Sick Leave Act (“EPSLA”‘). Employees no longer are required to provide documentation prior to utilizing EPSLA paid leave nor does an employee need to obtain an employer’s consent to take intermittent leave. The SDNY Court also removed a restriction that prevented employees that “do not have work [to complete]” from seeking paid leave, and struck down the USDOL’s definition of “health care providers.” However, the balance of the USDOL’s rules — including that employees need to provide documentation after utilizing EPSLA paid leave — remains in effect. For background information on the EPSLA, and a more in-depth analysis of the SDNY decision, please see below.

In response to the novel Coronavirus-2019 (“COVID-19”) pandemic, the United States Congress passed the FFCRA and EPSLA to grant employees paid leave if certain conditions were met. The EPSLA requires covered employers to provide paid sick leave to employees with one of six qualifying COVID-19-related conditions. The conditions include that the employee: 1.

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“is subject to a Federal, State, or local quarantine or isolation order related to COVID-19”; “has been advised by a health care provider to self-quarantine due to concerns related to COVID-19”; is experiencing symptoms of COVID-19 and seeking a medical diagnosis”; “is caring for an individual subject” to a quarantine or isolation order by the government or a healthcare provider; is caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19; or “is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.” Id. § 5102(a).

Under the EPSLA, an employer may deny leave to an employee with a qualifying condition if the employee “is a health care provider or an emergency responder.”

On April 6, 2020, the United States Department of Labor (“USDOL”) released regulations entitled the “Final Rule”1 interpreting the FFCRA and EPSLA. The Final Rule’s definition of “health care providers” was found to be improperly broad, which included “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction[.]” The USDOL admitted to the Court that most university professors would be unable to take paid leave pursuant to this definition. Another portion of the “Final Rule,” which has since been struck down, restricted employees from utilizing paid sick leave if “the employer does not have work for the employee” or if the employee failed to produce documentation from a medical professional prior to taking the leave. The Final Rule also required an employee to obtain an employer’s consent if the employee wanted to take intermittent leave. It can do so no longer.

The State of New York challenged the aforementioned restrictions, and the Court concluded that the USDOL overstepped its authority.

Most of the Final Rule remains in effect, but “the following portions, and only the following portions, of the Final Rule are [now] vacated: the work-availability requirement; the definition of ‘health care provider’; the requirement that an employee secure employer consent for intermittent leave; and. . . . the requirement that documentation be provided before taking leave.”

This decision will go into effect immediately, but the USDOL may seek a stay of the decision to pursue an appeal to the Second Circuit.

Unless and until that occurs, employers nationwide must abide by the relaxed rules imposed as a result of the SDNY decision.

Should you require any assistance to ensure compliance, we would be happy to assist.

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https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act

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New Jersey Expands Leave and Insurance Benefits To Employees Impacted by COVID-19 Employment Law Monthly – April 2020 Authored by David L. Disler On March 25, 2020, New Jersey passed another law to help ease the burden faced by employees who must miss work due to COVID-19. The new law allows employees affected

by COVID-19 to utilize New Jersey’s Earned Sick Leave Act, Family Leave Act, Temporary Disability Insurance, or Family Leave Insurance. The most significant change to these laws is that it provides benefits to employees who must be quarantined or care for a family member who must be quarantined.

New Jersey’s Earned (Paid) Sick Leave Act Even before the new law, the Earned Sick Leave Act provided significant protections to New Jersey employees during the state of emergency. In particular, it could be used by employees who were infected, had to take care for a sick family member who was infected, had to care for a child due to school or childcare closures, or because they could not work due to a closure for a public health emergency. Additional details about the Earned Sick Leave Act are available here.

indicates that the family member’s presence in the community would jeopardize the health of others.

The first bullet point above clarifies that it is permissible to do what many employers already had been doing -namely, to permit employees to utilize their earned sick leave time when they are unable to work because their workplace currently is closed and there is no remote work for the employees.

New Jersey’s Family Leave Act New Jersey’s Family Leave Act provides employees with up to 12 weeks of unpaid family leave to care for a family member with a serious health condition.1 The new law expands the definition of a “serious health condition” during a state of emergency to include an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent the spread of a communicable disease. However, family leave only can be taken in these circumstances if either: •

In addition to these protections, the new law allows employees also to use their earned (paid) sick leave in any of the below circumstances: • •

•

•

•

•

The employee is unable to work because his or her workplace is closed by order of a public health official or state of emergency called by the Governor.

The employee is unable to work because the school or child care facility of the employee’s child is closed by order of a public health official or state of emergency called by the Governor.

The employee’s presence in the community or employee’s family member’s presence in the community (who requires care by the employee) would jeopardize the health of others.

The employee is quarantined due to suspected exposure to a communicable disease and a healthcare provider indicates that the employee’s presence in the community would jeopardize the health of others.

The employee cares for a family member who is quarantined due to suspected exposure to a communicable disease and a healthcare provider

A healthcare provider or a public health authority issues a determination that the family member’s presence in the community may jeopardize the health of others; or A healthcare provider or public health authority makes a recommendation, direction, or order that the family member be isolated or quarantined because of suspected exposure to the communicable disease.

It is important to note that no other aspect of the Family Leave Act was modified by this amendment. Therefore, employers may (and should) still require documentation from the employee, even if only a letter or email noting the need for the leave. It also still only applies for the care of a family member, which definition was expanded in 2019 to include a child, parent, parent-in-law, sibling, grandparent, grandchild, spouse, domestic partner, or one partner in a civil union couple, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.

This definition is the same for the above-referenced Earned Sick Leave.

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New Jersey’s Temporary Disability Insurance (“TDI”) and New Jersey’s Family Leave Insurance (“FLI”) Temporary Disability Insurance provides cash benefits to New Jersey workers who suffer an illness, injury, or other disability that prevents them from working, and which was not caused by their job. Most employers in New Jersey must have Temporary Disability Insurance for their employees. Family Leave Insurance provides New Jersey workers cash benefits for up to six weeks to bond with a newborn, newly adopted, newly placed foster child, or to provide care for a seriously ill or injured family member.

While most New Jersey workers who take family leave are covered under the State’s family leave program, some employers provide Family Leave Insurance through a plan with a private insurance carrier instead.

The main difference between Temporary Disability Insurance and Family Leave Insurance is that Temporary Disability Insurance is used when the employee is seriously sick, whereas Family Leave Insurance is used when the employee is caring for a seriously sick family member.

Therefore, employees who became seriously sick due to contracting COVID-19 or had to care for a family member who became seriously sick due to COVID-19 already could use Temporary Disability Insurance or Family Leave Insurance. However, the new law allows employees during a state of emergency to use Temporary Disability Insurance or Family Leave Insurance if they have (1) an illness caused by an epidemic of a communicable disease; (2) a known or suspected exposure to a communicable disease; or (3) are taking efforts to prevent the spread of a communicable disease. In these cases, Temporary Disability Insurance or Family Leave Insurance only can be taken if a healthcare provider or public health authority makes a recommendation, direction, or order that the family member be isolated or quarantined because of suspected exposure to the communicable disease. Family Leave Insurance also may be taken if a healthcare provider

or a public health authority issues a determination that the family member’s presence in the community may jeopardize the health of others.

Conclusion New Jersey already provided significant benefits to employees under its Earned Sick Leave Act, Family Leave Act, Temporary Disability Insurance, and Family Leave Insurance. As a result, significant changes were not necessary to provide benefits to those who became sick or needed to care for a family member who became sick due to COVID-19.

Instead, the most noteworthy addition to these laws is they now provide benefits to employees who must themselves be quarantined or who are caring for a family member who must be quarantined because of known or suspected exposure to a communicable disease. Due to the lack of testing available and the unprecedented nature of how COVID-19 spreads, it is not surprising that these provisions were not in the original laws, but the Legislature felt a need to make these revisions.

Employers should review their policies and update them where necessary to ensure compliance with these new expanded provisions. In light of the current COVID-19 circumstances, employers may wish to create new forms to be used by employees seeking to use unpaid time under the Family Leave Act for these new expanded reasons.

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It also commonly is used for the birth or adoption of a child.

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Leave Entitlements Arising from COVID-19 Employment Law Monthly – April 2020 Authored by David L. Disler The onslaught of news and information regarding COVID-19, which evolves daily and often seems contradictory, has led to anxiety and confusion for many companies. In particular, for those individuals in charge of Human Resources, the questions with regard to wages and leave issues are countless. Although the response to inquiries will continue to evolve as the situation develops, the following summary will provide guidance to companies looking to navigate this emerging public health situation.

Review Sick Leave Policies Review your sick leave policies to ensure they are flexible enough to be consistent with public health directives as they evolve. Be sure your policies conform with any earned sick leave laws that might apply to your employees. For example, leave under the New Jersey Earned Sick Leave Law can be applied to an instance where the employer’s business is closed due to a public health emergency, or an employee needs to care for a child whose school or day care has closed due to such an emergency. We have provided a benefits chart that provides guidance from the New Jersey Department of Labor with regard to the various potentially applicable State leave/wage payment benefits as well as guidance on the recently enacted federal paid leave provisions.

Employees without paid sick time can be reluctant to call out sick. As such, if your company is not covered by the recently enacted federal legislation providing for paid leave associated with COVID-19, consider developing an interim public health emergency sick leave plan that provides paid sick leave and/or increases the amount of paid leave that could be implemented in the event of a confirmed cluster of illness in your area or workplace.

Inform your employees that if they appear for work with observable symptoms of illness, including, but not limited to coughing, wheezing or other signs of respiratory illness, they will be sent home and advised to seek medical attention. Although employers are permitted to request some form of fitness-for-duty clearance from a doctor, such requests need to pass the ADA’s “job-related and consistent with business-necessity test.” See https://www.eeoc. gov/policy/docs/guidance-inquiries.html for guidance from the EEOC on that subject. Generally speaking, the purpose of a fitness for duty clearance is to determine whether the employee can return to work and not pose a threat to coworkers, not to obtain a medical diagnosis. If the employee has not volunteered a diagnosis, employers should be cautious about seeking one unless directed otherwise by a Public Health Agency.

Overview of Federal Legislation Regarding Paid Leave On March 18, 2020, the President signed into law the Families First Coronavirus Response Act, which provides major expansions to the Family Medical Leave Act (FMLA) and unprecedented federal law entitlement to paid leave for employees. There are two Acts included in this package, both of which are effective April 2, 2020 and will remain in place until December 31, 2020 -- the Emergency Paid Sick Leave Act of 2020 and the Emergency Family and Medical Leave Expansion Act. There are tax credits available for employers, which are discussed further below.

I.

Emergency Family and Medical Leave Expansion Act • Eligible Employers. All employers with under 500 employees • Eligible Employees. All who have worked for the employer for at least 30 calendar days

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Note: This is a significant deviation from the FMLA’s traditional eligibility provision, requiring an employee to have worked for the employer for 12 months. It also is a significant deviation from the requirements of 50 employees within a 75 mile radius for this one new qualifying reason only.

•

•

•

•

•

•

II.

Qualification for Leave. Employees are entitled to leave when they are unable to work or telework due to a need to take care of a child whose school or day care has closed or whose child care provider is unavailable due to a public health emergency declared by any public authority relating to COVID-19.

Timing of Paid Leave. First 10 days of leave may be unpaid leave, but the employee is entitled to substitute any accrued vacation leave, personal leave, or sick leave for unpaid leave. After 10 days, and up to 12 weeks, employer must provide paid leave.

Total Amount of Paid Leave. Paid leave cannot exceed $200 per day or $10,000 total. After the $10,000 maximum is exhausted, the remainder of the leave, which can be up to 12 weeks, is unpaid.

Notice and Required Documentation. Where leave is foreseeable, the employee must provide the employer with notice as soon as practicable. The Act does not specify the documentation required for an employee to prove entitlement to leave, but employers should generally require a written statement from the employee concerning the reason for leave.

Employees Returning to Work. In general, employers will be required to return an employee to work at the end of the leave, just as with the FMLA. However, there is an exception for employers with fewer than 25 employees. Such employers are not required to return an employee to work if the employee’s position no longer exists due to economic conditions or other changes caused by the public health emergency of COVID-19. The employer still must make a reasonable effort to restore the employee to an equivalent position for a period of up to one year, including by contacting the employee when an equivalent position becomes available.

Notice to Employees. Department of Labor will publish a poster that must be posted in the workplace. While not required, as many employees are working remotely or not working at all right now, employers should provide employees with a written policy or notice notifying them of leave availability under the Act. This notification could be provided via email, an intranet or on the company website.

Emergency Paid Sick Leave Act • Eligible Employers. All employers with under 500 employees • Eligible Employees. All employees -- regardless of their period of employment • Qualification for Leave. An employee qualifies for sick leave under the Act if the employee is unable to work or telework because of any one of the following: • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; • The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order or who has been advised by a health care provider to selfquarantine; • The employee is caring for a son or daughter whose school or place of child care has been closed or whose child care provider is unavailable due to COVID-19 precautions; or • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

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•

• •

•

•

•

•

Overlap With Other Paid Time Off. • Employers cannot require that employees take leave under existing policies first. Employees are entitled to take Emergency Paid Sick Leave before any other leave provided by the employer.

• Employees still are entitled to take whatever paid leave was available to them before the passage of the Act, and employers cannot change their leave polices after the passage of the Act to provide less leave than already has been promised.

• If an employee qualifies for both Emergency Family Leave (addressed above) and Emergency Paid Sick Leave, the employee is entitled to use the Emergency Paid Sick Leave at the same time as the first 10 (unpaid) days of the Emergency Family Leave.

• An employer may not require, as a condition of providing this paid sick time, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid sick time.

Amount of Paid Leave.

• Full-time employees - 80 hours of paid leave • Part-time employees - the number of hours they work, on average, over a 2-week period Paid sick time under the Act cannot carry over from one year to the next. It, therefore, expires on December 31, 2020.

Total Amount of Paid Leave. There are two different rates available.

• Employee leave taken due to a local quarantine, physicianrecommended self-quarantine, or experiencing of COVID-19 symptoms (1, 2, and 3 above) must be paid at the employee’s regular rate of pay, limited to $511 per day and $5,110 total.

• Employee leave taken due to an employee caring for a person subject to quarantine or advised by a physician to self-quarantine, to care for a child whose school or day care is closed, or for a substantially similar condition specified by the head of a federal agency (4, 5, and 6 above) must be paid at two-thirds of the employee’s regular rate of pay, limited to $200 per day and $2,000 total.

No Obligation to Pay Upon Termination. There is no requirement for payment or other reimbursement for unused sick time upon the employee’s termination, resignation, retirement, or other separation from employment.

Notice and Required Documentation. The Act does not specify what type of documentation is required for the employee to prove entitlement to paid sick leave, but employers should require that the employee provide a written statement concerning the reason for leave. After the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.

No Retaliation. Employers are prohibited from taking adverse action against any employee who takes leave under the Act, files a complaint or suit related to the Act, or who testifies in a proceeding related to the Act. Employers who violate the Act will be considered in violation of the Fair Labor Standards Act. Notice to Employees. Department of Labor will publish a poster that must be posted in the workplace. While not required, as many

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employees are working remotely or not working at all right now, employers should provide employees with a written policy or notice notifying them of leave availability under the EFMLEA. Possible Exceptions for Certain Small Businesses Both Acts give the Secretary of Labor the authority to issue regulations to exempt some small business with fewer than 50 employees from providing family leave when the imposition of such requirements would jeopardize the viability of the business. Given the recent passage of this law, there is no current guidance on what types of businesses might be exempt.

Tax Credits for Employers.

Employers with fewer than 500 employees are entitled to a tax credit equal to 100% of the qualified wages they pay to employees for sick leave under the Emergency Paid Sick Leave Act. This credit is refundable against the employer’s share of Social Security taxes (6.2%) and the employer portion of the hospital insurance tax (1.45%).

For self-employed persons who would be entitled to Emergency Paid Sick Leave if employed by another business, the credit is allowed against regular income taxes up to the maximum amounts as described for employees above. *** Despite the stress of information overload, this is not the time to be a trailblazer. We advise keeping abreast of official guidance from the Center for Disease Control and Prevention (“CDC”), the U.S. Departments of Health and Labor, the Office of the Governor, and state and local Health Departments prior to making employment decisions.1

1

These entities provide information that applies to specific industries and generally to all

employers. For example, the CDC has released guidance specifically addressed to businesses outlining recommendations and best practices on protecting the workplace. Available here: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response. html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecificgroups%2Fguidance-business-response.html

Given the recent passage of this law, there is no current guidance on what types of businesses might be exempt.

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The Fate of the FFCRA: Mandatory Paid Leave For Employees Impacted By COVID-19 Will Become Voluntary In 2021 Under The Consolidated Appropriations Act Client Update – December 2020 Authored by Kathryn K. Forman

As many employers are aware, the Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Act Expansion set forth in the Families First Coronavirus Response Act (FFCRA) are set to expire on December 31, 2020. With the effects of COVID-19 still impacting the American workforce significantly, many employers are wondering whether, and to what extent, they will remain obligated to continue providing paid leave to eligible employees. The answer to this question lies within the Consolidated Appropriations Act, 2021, enacted December 27, 2020, under which the paid leave mandates of the FFCRA will become voluntary for the first quarter of 2021.

Specifically, Section 286 of the Act amends the FFCRA to set forth that employers no longer will be legally obligated to offer the paid leave mandated in the 2020 version of the law, but may be entitled to the FFCRA tax credit for doing so, with the amendment set to expire on March 31, 2021. The Act does not, however, expand the original leave entitlement, so employers must keep in mind that the credit will be available only for paid leave provided to employees who have not already exhausted their available FFCRA leave. The Act also leaves undisturbed the coverage provisions of the FFCRA, so employers that were ineligible for the credit under the 2020 FFCRA will remain ineligible, including government entities (such as public school districts).

As always, employers also must keep in mind the importance of applying federal leave laws in conjunction with state leave laws, such as New Jersey’s Earned Sick Leave Law, New Jersey’s Family Leave Act, and the requirements of the New Jersey Law Against Discrimination, which, depending on the circumstances, may require employers to offer leave beyond that which is mandated by federal law.

Employers with questions regarding how to apply COVID-19 leave laws in specific situations are encouraged to reach out to a Porzio attorney for guidance.

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Federal Illegality Be Damned Employer Compulsory Reimbursement For Employee-Workers’ Compensation Medical Marijuana Use Employment Law Monthly - February 2020 Authored by Eliyahu S. Scheiman In Hager v. M & K Construction, 2020 WL 21890 (App. Div. Jan. 13, 2020), the New Jersey Appellate Division issued the second of its recent, pro-employee, medical marijuana decisions, the other being Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416 (App. Div. 2019), certif. granted, 238 N.J. 489 (July 11, 2019).

The Wild appellate panel held a funeral director-cancer patient treating with medical marijuana, fired after failing a drug test, could at least at the pleading stage assert a claim for disability discrimination under the New Jersey Law Against Discrimination (NJLAD). The New Jersey Supreme Court granted certification and heard argument on the case on February 4, 2020. The Wild appeal is significant because the trial court had dismissed the case for failure to state a claim on the grounds that New Jersey’s then medical marijuana statute did not require an employer to accommodate marijuana use (the current version of the statute does contain employment protection for medical marijuana use) and a New Jersey Federal Court judge in Cotto v. Ardagh Glass Packing, Inc., 2018 WL 3814278 (D.N.J. Aug. 10, 2018), in earlier dismissing an NJLAD claim by a forklift operator who could not pass a drug test because of medical marijuana use, had predicted that a New Jersey court would find that the NJLAD does not require an employer to accommodate an employee’s use of medical marijuana with a drug test waiver.

This is the backdrop for Hager, where the Appellate Division affirmed the order of a workers’ compensation judge requiring an employer to reimburse its employee for the costs of medical marijuana treatment -- a decision contrary to that reached by the Maine Supreme Court in Bourgoin v. Twin Rivers Paper Co., 187 A.3d 10 (Me. 2018), the other most recent workers’ compensation-medical marijuana decision by an appeals court or higher. Unlike Bourgoin, Hager found no conflict between requiring reimbursement of workers compensation-medical marijuana costs and the federal Controlled Substances Act (CSA), because reimbursement does not require an employer to possess, manufacture or distribute marijuana -- the conduct illegal under the CSA. Nor would it be aiding and abetting the employee in the commission of a federal crime, because the employer “is never in possession of the marijuana” and “cannot aid and abet a completed crime.” The Hager panel also noted that the “federal attitude towards marijuana is equivocal. M & K has not demonstrated any intention by the federal government to enforce the CSA in any state that has decriminalized medical marijuana.” Bourgoin and other opinions have rejected this argument as conflating likelihood of enforcement with legality.

It is hard to distinguish cases like Bourgoin from Hager on legal, doctrinal grounds. The facts are largely analogous.

Maine is an adult-use marijuana state; one might think its judiciary would therefore be more inclined to rule for employee, medical marijuana use protection. New Jersey, on the other hand, is a medical-marijuana use only state.

Yet, Hager required an employer to reimburse for medical marijuana treatment, and Bourgoin did not. Hager follows two prior New Jersey workers’ compensation decisions requiring employer reimbursement of employee medical marijuana costs, Watson v. 84 Lumber, Claim Petition No. 2009-15740, decided December 15, 2016, and McNeary v. Freehold Twp., Claim Petition No. 2008-8094, decided June 28, 2018. Neither administrative level decision was appealed.

Take Away The Hager and Wild appellate decisions reflect the trend in New Jersey, and the Northeast as a whole, towards increased employment protections for employee medical marijuana use. Marijuana use will continue to normalize and increasingly be viewed akin to alcohol use. These decisions are reminders for employers, particularly those with multistate operations, to review their workplace policies regarding medical marijuana use during work and off-work hours.

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The NLRB Sets the Stage for a Sea of Change in Employment Practices for 2020 Published in DRI’s The Job Description – February 26, 2020 Authored by Kerri A. Wright & Melanie D. Lipomanis In the final month of 2019, the National Labor Relations Board (“Board”) followed through on its promise to reverse course on a number of precedents established during the Obama administration. Recent employer-friendly Board decisions and Advice Memoranda address a broad spectrum of employment issues for both unionized and non-union workforces, all of which will have a significant impact on business practices and workplace policies. This article provides a summary of the Board’s whirlwind of activity in closing out 2019 and how to counsel clients on their employment practices going forward in 2020.

Employers May Restrict Use of Email and Other Information Tech Systems In a very welcome 3–1 decision, the Board overturned Purple Communications, Inc., 361 NLRB 1050 (2014), which held that employer policies prohibiting employees from using the employers’ email systems for non-work related purposes were presumptively invalid as they impinged upon employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”).1 In Caesars Entertainment Corp d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (December 16, 2019), the Board held that employees’ Section 7 activities must yield to employers’ property rights in controlling the use of their equipment. It further held that employees “do not have a statutory right to use employers’ email and other information-technology (IT) resources to engage in non-work-related communications.” Accordingly, employers may lawfully exercise their right to restrict the uses for which those email and other IT systems are intended. The Board noted the prevalence of smart phones, personal email and social media and found restrictions on employer-provided platforms are lawful, as long as those restrictions are not discriminatory, i.e., apply only to Section 7 activity.

The Caesars decision recognized that, while the majority of workplaces will allow employees adequate access to communicate for concerted efforts without using their employer’s equipment, there will be rare circumstances in which an employer’s IT resources are the only reasonable means for employees to do so. Under those circumstances, the Board held that the employer’s property rights must yield, and employees must be permitted to use employer-provided email to the extent required to ensure adequate avenues of communication. The Board declined in Caesars to define the scope of the exception, leaving it to “be fleshed out on a case-by-case basis.” Accordingly, when advising employers on implementing policies restricting use of email and other systems, it is important to be mindful of the nature of the work environment, particularly where a substantial portion of the workforce is comprised of remote or virtual employees, as that is a situation in which the exception might become applicable.

Employers May Require Confidentiality During Workplace Investigations One of the more controversial and problematic precedents from the Obama-era Board was the 2015 decision in Banner Health Systems, 362 NLRB No. 137 (2015), which required an employer to determine on a case-by-case basis “whether its interests in preserving the integrity of an investigation outweighed presumptive employee Section 7 rights.” At its core, this decision prohibited an employer’s blanket rule of insisting on confidentiality during workplace investigations, which certainly could have a chilling effect on employee candor and participation. It also could compromise the integrity of the investigation (call to mind the sensitive nature of many employers’ proactive internal investigations following the Me-Too movement).

In Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (December 17, 2019), the Board rejected the holding in Banner Health, which put employers in the untenable position of either complying with the NLRA, or protecting employees (i.e., the accuser, accused and witnesses) and safeguarding the integrity of open internal investigations. Instead, the Board used the analysis standard established in The Boeing Company, 365 NLRB No. 154 (2017), which weighs the nature and extent of the effect on employees’ Section 7 rights and the employer’s legitimate justifications for the rule. Under this framework, the Board held that, while an employer’s facially neutral rules mandating confidentiality during an investigation necessarily impact employees’ Section 7 rights, such impact is “comparatively slight” and is “outweighed by the substantial and important justifications associated with the [employer’s] maintenance of the rules.”

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This change in policy is reflected in the Board’s acknowledgement that federal agencies—including the NLRB, Equal Employment Opportunity Commission, and the Occupational Safety and Health Administration—all require confidentiality during their own active internal investigations to protect employee privacy and maintain the integrity of the investigation. The Board noted, however, that an employer’s investigative rules that do not expressly limit confidentiality to ongoing and open investigations could be subject to higher scrutiny and may require the employer to proffer additional legitimate business justifications. Therefore, while employers may now implement blanket confidentiality rules during investigations of alleged wrongdoing, they should be instructed to draft such policies to apply to ongoing investigations only. Once the investigation is over, nonsupervisory employees should be permitted to speak about their role in the investigation unless there remains significant reasons to continue to require confidentiality. In such a situation, the significant reason(s) should be clearly communicated to the applicable employees and recorded in writing for posterity (and possible future litigation on the issue).

Employers May Limit Union Buttons and Other Insignia in the Workplace Employees’ protected right to wear union insignia, e.g., buttons, pins, etc., stems from the Supreme Court’s decision in Republic Aviation Corp. v NLRB, 324 U.S. 793 (1945), which recognized workers’ right to wear union insignia and presumed that an employer’s restrictions of that right were unlawful unless they could demonstrate “special circumstances” justifying the restriction. Special circumstances that would justify an employer’s limitations on union and other insignia have been exceptionally narrow and generally are only permitted to stand where such items would (1) jeopardize employee safety; (2) damage machinery or products; (3) exacerbate employee dissension; or (4) unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees. In-N-Out Burger, Inc., 365 NLRB No. 39 (2017).

At issue in Wal-Mart Stores, Inc., 368 NLRB No. 146 (December 16, 2019), was Wal-Mart’s dress code policy that only permitted employees to wear “small, non-distracting logos or graphics” no larger than the size of its employee name badges. There, the Board returned to the balancing analysis established in its 2017 Boeing decision and found Wal-Mart’s facially neutral policy was lawful for some employee groups, but not others. Specifically, the Board held that Wal-Mart’s policy was lawful as it applied to employees who dealt directly with customers on the sales floor, because the employer’s interest in providing its customers a satisfying shopping experience, on balance, outweighed the employees’ interest in having no restrictions on the size of the insignia they were permitted to wear. The policy was held unlawful, however, in “employee-only” areas, because “the whole point” of wearing a large or distracting union insignia was precisely to “catch the attention of coworkers” for communications protected by Section 7 of the NLRA. The takeaway from this decision is that employment policies should be narrowly tailored to limit insignia worn by frontline employees only while they are working in the employer’s sales areas or in view of customers or clients. For such a policy to apply to employees working in non-public areas, employers must meet the narrow special circumstances enumerated above from the Board’s In-N-Out Burger, Inc. decision.

Employers May Stop Collecting Union Dues Upon the Expiration of a Contract In Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center, 368 NLRB No. 139 (December 16, 2019), the Board overruled the 2015 decision Lincoln Lutheran of Racine, 362 NLRB No. 188 (2015) and returned to precedent governing union check-off dues established decades earlier under Bethlehem Steel, 136 NLRB 1500 (1962).

34 The Board’s decision in Valley Hospital reinstated the long-standing rule that employers have no statutory obligation to check-off and remit employees’ union dues after the expiration of the parties’ collective bargaining agreement that contains the check-off provision. The Board held that dues collection provisions belong in the limited category of mandatory subjects of bargaining which created exclusively by the collective bargaining agreement and are enforceable under the NLRA solely for the duration of the contractual obligation negotiated by the parties. This returns collective bargaining agreements to standard principles of contract formation, under which obligations created by contract do not extend beyond the expiration of the instrument that created them.

Employers may now unilaterally cease deducting union dues through employee-payroll upon the expiration of a contract. This reversal of fortunes restores to employers an economic advantage in seeking prompt agreement on, and ratification of, successor contracts.

Deferential Treatment of Arbitration Awards Is Back in Full Force The Obama-era Board’s decision in Babcock & Wilcox Construction Co., Inc., 361 NLRB No. 132 (2014), abolished the decades-old Spielberg/Olin deference standard regarding Board deferral to employer-employee-established grievance and arbitration processes (based on the seminal decisions in Spielberg Mfg. Co., 112 NLRB 1080 (1955) and Olin Corp., 268 NLRB 573 (1984)). Babcock & Wilcox newly placed the burden of proof on the party seeking the Board’s deferral to the parties’ arbitration decision and set more stringent standards for deferral to be appropriate. This basically rendered previously negotiated final and binding dispute resolution processes wholly toothless—as optional or interim determinations only. In addition, it spawned an era of costly, acrimonious, and wildly protracted labor disputes.

In United Parcel Service, Inc., 369 NLRB No. 1 (December 23, 2019), the Board unanimously overruled Babcock & Wilcox and restored the prior standard for determining when to defer to arbitration decisions in labor disputes, further announcing it would apply this standard retroactively. Under the restored standard, the Board will defer to the arbitrator’s decision when (1) the arbitral proceedings appear to have been fair and regular, (2) all parties have agreed to be bound, (3) the arbitrator considered the unfair labor practice issue, and (4) the arbitrator’s decision is not clearly repugnant to the NLRA. The burden once again will rest with the party opposing deferral to show these standards have not been met. In addition, the decision restores the corollary rules for pre-arbitral deferral established in United Technologies Corp., 268 NLRB No. 557 (1984), and for deferral to pre-arbitral settlement agreements established in Alpha Beta Co., 273 NLRB No. 1546 (1985).

Conclusion Each of these decisions returns the federal labor law landscape to where it had been for many years. These and other ongoing changes to the Board’s positions requires employers across the country to remain vigilant in conducting annual reviews of their policies and training materials to ensure they are up to date with current federal labor requirements.

1

Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos-

ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Because Section 7 affords employees with the right to engage in concerted activities for general “mutual aid or protection” and is not restricted to organizing and collective bargaining efforts, those rights apply to non-unionized as well as unionized workforces.

Employers may now unilaterally cease deducting union dues through employee-payroll upon the expiration of a contract.

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Overruled: the NLRB Restores Employers’ Rights Employment Law Monthly - January 2020 Authored by Kerri A. Wright & Melanie D. Lipomanis In a whirlwind of activity at the end of 2019, the National Labor Relations Board followed through on its promise to reverse course on a number of precedents that either were established or significantly modified during the Obama administration. In the last weeks of 2019, the Board issued several employer-friendly decisions and Advice Memoranda aimed at addressing a broad spectrum of employment issues for both unionized and non-union workforces. The most immediately significant of these decisions include restoring employers’ control over their email and IT systems and permitting employers to once again require confidentiality during the course of employment investigations. These two, as well as a few others, outlined in this article, will significantly impact employer practices and policies.

Employers May Require Confidentiality During Workplace Investigations One of the more controversial and problematic precedents from the Obama-era Board was the 2015 decision in Banner Health, which required employers to determine on a case by case basis whether its interests in preserving the integrity of an investigation outweighed presumptive employee-rights under Section 7 of the National Labor Relations Act (“NLRA”), to discuss the terms and conditions of their employment. At its core, this decision prohibited employers from having a blanket rule of insisting on confidentiality during workplace investigations. Without such confidentiality, employers experienced an unintended chilling effect on employeecandor and participation in workplace investigations. Employers also expressed concerns with regard to maintaining the integrity of investigations, as they were not permitted to require confidentiality of witnesses and other participants.

In Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (December 17, 2019), the Board rejected the holding in Banner Health, which put employers in the untenable position of either complying with the NLRA, or protecting employees (i.e., the accuser, accused and witnesses), and safeguarding the integrity of open internal investigations. Instead, the Board used the analysis standard established in The Boeing Company, 365 NLRB No. 154 (2017), which weighs the nature and extent of the effect on employees’ Section 7 rights, and the employer’s legitimate justifications for the rule. Under this framework, the Board held that, while an employer’s facially-neutral confidentiality rules impact employees’ Section 7 rights, such impact is “comparatively slight” and were “outweighed by the substantial and important justifications associated with the [employer’s] maintenance of the rules.”

This change in policy moving forward is consistent with how internal investigations were being handled by several federal agencies, including the NLRB, Equal Employment Opportunity Commission, and the Occupational Safety and Health Administration. All of these agencies had blanket rules requiring confidentiality during their own active internal investigations to protect employee-privacy and maintain the integrity of those investigations. The Board noted, however, that an employer’s investigative rules that do not expressly limit confidentiality to ongoing and open investigations could be subject to higher scrutiny and may require the employer to proffer additional legitimate business justifications. Therefore, while employers now may implement blanket confidentiality rules during investigations of alleged wrongdoing, such requirements should apply to ongoing investigations only. Once the investigation is over, non-supervisory employees should be permitted to speak about their role in the investigation unless there remain significant reasons to continue to require confidentiality.

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Employers May Restrict Use of Email and Other Information Tech Systems In a 3-1 decision, the Board overturned a prior 2014 ruling in Purple Communications, which held that employer policies prohibiting employees from using the employers’ email systems for non-work related purposes were presumptively invalid as they impinged upon employees’ Section 7 rights.

In Caesars Entertainment Corp d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (December 16, 2019), the Board held that employees’ Section 7 activities must yield to an employer’s property rights in controlling the use of their equipment and that employees “do not have a statutory right to use employers’ email and other information-technology (IT) resources to engage in nonwork-related communications.” Accordingly, employers may lawfully exercise their right to restrict the uses to which those email and other IT systems are intended. The Board noted the prevalence of smart phones, personal email and social media, and found restrictions on employer platforms is lawful providing the restrictions are not discriminatory, i.e., apply only to concerted union activity.

The Caesars decision recognizes that, while the majority of workplaces will allow employees adequate access to communicate without using their employer’s equipment, there will be rare circumstances where an employer’s IT resources are the only reasonable means for employees to do so. When determining whether to implement policies restricting use of email and other systems, it is important to be mindful of the nature of the work environment, particularly where a substantial portion of the workforce is comprised of remote or virtual employees.

Employers May Limit Union Buttons and Other Insignia in the Workplace Employees’ protected right to wear union insignia e.g., buttons, pins, etc., stems from a 1945 decision in Republic Aviation, which recognized workers’ right to wear union insignia, and presumed that an employer’s restrictions were unlawful unless they could demonstrate “special circumstances” justifying the restriction. Special circumstances that would justify an employer’s limitations on union and other insignia have been exceptionally narrow and are generally only permitted to stand where such items would (1) jeopardize employee safety; (2) damage machinery or products; (3) exacerbate employee dissension; or (4) unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees. In-NOut Burger, Inc., 365 NLRB No. 39 (2017).

In Wal-Mart Stores, Inc., 368 NLRB No. 146 (Dec. 16, 2019), at issue was Wal-Mart’s dress code policy that only permitted employees to wear “small, non-distracting logos or graphics” no larger than the size of the employee name badges. There, the Board returned to the balancing analysis established in its 2017 Boeing decision, and found Wal-Mart’s facially-neutral policy was lawful for some employee groups, but not others. Specifically, the Board held that Wal-Mart’s policy was lawful as it applied to employees who dealt directly with customers on the sales floor because the employer’s interest in providing its customers a satisfying shopping experience, on balance, outweighed the employees’ interest in having no restrictions on the size of the insignia they were permitted to wear. The policy was held unlawful, however, in “employee-only” areas because “the whole point” of wearing a large or distracting union button was precisely to “catch the attention of coworkers” for communications protected by Section 7 of the NLRA.

37 The takeaway from this decision is that employment policies should be narrowly tailored to limit insignia worn by frontline employees while they are working in the employer’s sales areas or in view of customers or clients. **** Now that the NLRB has given employers back some of the rights they had previously, it is incumbent upon each employer to review carefully its policies and procedures to ensure they provide the level of control and flexibility desired by the company’s management.

Now is a good time to review investigation procedures, to consider thoughtfully how your company wishes to handle investigations.

This should include, but is not necessarily limited to, the level of confidentiality the company will expect from participants during internal investigations. As it is the start of a new year, now also is a good time to review “acceptable use” policies related to employees’ use of company communication systems and property, including email or other IT systems. Employers also should review and update their dress code policies, which may include limitations on buttons or other insignia. Careful attention should be paid to whether any personal wearable paraphernalia can be seen by customers or clients. Some of these policies may have just recently been changed to reflect the restrictions imposed upon employers under the prior NLRB decisions, but a second review now would be wise.

What Employers Need to Consider When Recalling Furloughed Workers Employment Law Monthly – August 2020 Authored by David M. Schloss The fits and starts of the COVID-19 pandemic have unleashed a number of challenges on businesses and our economy. One such challenge facing the multitude of companies who were forced to furlough some or all of their staff when the pandemic hit is how to recall those furloughed workers as activity picks up in a manner that is fair, sound, makes business sense and mitigates risk. This article will briefly identify and address some of the most critical questions those employers face.

First, however, let’s try to define “furlough,” which is not an easy task since there is no clear and consistent definition under federal or state law, particularly, for private, non-union employers.

That said, a furlough is generally considered to be a temporary reduction in pay and hours (often down to zero) during a time of economic downturn, either generally across industries or specific to a particular business. A furlough can be thought of as an unpaid leave of absence (with or without benefits) with the expectation which, at some point, when conditions improve, workers will be brought back; as compared with a layoff, which is a termination of employment with no concomitant expectation of recall. A furlough presents a “bad news/good news” scenario for the worker -- the bad being, you’re no longer going to be paid -- the good being, you’re not terminated, you’re still part of the company, and we expect to have you back in the fold sometime soon.

Pandemics, like the one currently engulfing the nation, result in a sudden and dramatic downturn as opposed to the gradual business decline that often results from shifting markets or technologies or through normal competition. As such, they don’t provide employers with much lead time for careful preparation. Companies were hit hard and out of nowhere by this pandemic. Businesses, in some cases went from thriving to shuttered overnight, particularly in travel, leisure and entertainment. In order to stop the bleeding, many companies were left with no choice other than to quickly cut costs. Furloughing staff provided a means to do so without technically having to terminate employees, and making it more seamless to bring folks back as conditions permit.

38 Now let’s focus on how companies may best recall their furloughed workers.

Employers must initially determine who will be invited to return. The decision is easy if the answer is everyone, but not so simple if your company is going to return some, but not all. The determination can present practical and legal challenges that must be considered as those not selected can quickly transform from furloughed workers to frustrated plaintiffs. Begin the process by creating a coherent and comprehensive business case directly addressing the criteria driving the decision on who returns and who does not. A number of legitimate and lawful criteria can be used to justify the decision: divisional; functional; by position; skill set; seniority; and, even performance. The key is that the employer prepare a clear statement and rationale for the selection criteria and process that makes sense and is consistently applied. Otherwise, your decision could be seen as unlawful should the outcome have an adverse impact on a protected class of employees.

Your business case should contain all relevant considerations including: the number of workers returning; the timing of their return; the terms and conditions under which they’ll be returning; and, the selection criteria supporting your decision. The business case is especially critical if the criteria used is skills or performance driven. Those decisions should be supported by documentation existing prior to the selection, i.e., performance reviews, rather than created to support the selection. The latter could be construed as mere justification for a decision that has an adverse impact rather than a genuine and earnest attempt to evaluate the skills and performance most essential to your company’s restart.

Also, it is good practice to prepare formal recall letters and deliver them to furloughed workers at least one week before their return date in order to create a clear record of the offer to return and the terms under which that offer is made. From a practical standpoint, it is respectful to the employee who may need to adjust child care in order to return or who has picked up temporary work while on furlough.

From a legal standpoint, formal letters provide protection in the event the employee does not return to work and, instead remains on unemployment or later claims that a return was never offered.

The recall letter should include all key terms and conditions of the return (as if it were an original offer letter) including return date, location, title, reporting structure, vacation and sick leave balances, status as hourly or salaried, and hours and pay rates for non-exempt employees and salary for exempt. It should also describe any significant changes to the business or job to avoid surprises.

Since the worker was furloughed with an expectation of returning, in most cases, it is not necessary to re-do employment verifications, drug screens or background checks, but those are sometimes required by industry or agreement, so please check with counsel.

Finally, a return from furlough is a great time to review and revise various workplace programs and policies as much has changed over the past several months. Be prepared for a brave new world where the law requires you to provide emergency paid sick leave and, in some cases, family leave, for those suffering from or quarantined as a result of the disease or caring for children whose school or day care is closed as a result of COVID-19.

Additionally, SOP’s should be in place providing protocols for the health and safety of those returning to the work site including: • • • • •

Daily employee health screenings; Response to the onset of symptoms at work; Return to work following suspected or confirmed COVID-19; Cleaning and sanitizing workspaces; provision of PPE and plans for social distancing; and, Contact tracing and notification of those potentially exposed to the disease while at work.

Also, employers need to be prepared to respond to those employees who choose not to return or seek an accommodation because they or someone they live with has an underlying health condition or is simply anxious about returning.

Finally, for New Jersey employers, note that amendments to the NJ “Mini” WARN Act involving employer obligations in the event of a mass layoffs, which were passed in January and due to go into effect in July, were postponed by the Governor’s designation of the COVID-19 pandemic as a national emergency. We are awaiting further word on this, so be cautious about future notification requirements if workers are not recalled, and consult with counsel upon reinstatement of those who were furloughed.

These are difficult times and, in many ways, uncharted territory for employers, but all in all, if your company is fortunate enough to be in a position to recall furloughed workers -- that’s a good thing, which, if done correctly, will benefit all.

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NJ WARN currently requires advance notice to employees impacted by a mass layoff, and has financial implications for failing to do so.

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Challenges for New Jersey Employers Facing COVID-19 Related Workforce Reductions Client Alert – March 2020 Authored by Kathryn K. Forman, Patricia M. Prezioso & Kerri A. Wright Employers operating in New Jersey who find themselves needing to reduce their workforces for reasons related to COVID-19 should seek guidance from counsel with regard to the application of obligations set forth in New Jersey’s WARN Act (“NJ WARN”). In addition to the federal law, New Jersey’s version, which is considered one of the nation’s most stringent, requires employers to provide employees with notice of a mass layoff, termination, or transfer of operations, affecting 500 or more full-time employees, or 50 or more full-time employees if such represents one-third or more of the employees at the business establishment. Presently, the law requires employers to provide at least 60 days’ notice, and requires that employers pay certain severance in the event that they do not fully comply with the notice requirement.

The federal WARN Act contains a provision that may permit employers to reduce the notice requirement due to unforeseeable business circumstances. However, while NJ WARN provides exceptions for certain circumstances including “natural disaster” and “national emergency,” these exceptions apply only where the employer undertakes a “termination of operations,” rather than simply a “mass layoff” where the company continues to operate, or a “transfer of operations.” Notably, a “termination of operations” need not result in a complete shut-down of the employer’s New Jersey operations. Depending on the circumstances, it may include the termination of operations at a single establishment, or even a business unit within a single establishment.

Here are some issues to consider in analyzing whether the obligations of NJ WARN are applicable: Is the length of the layoff anticipated to last longer than 6 months? If yes, it is considered a “Termination of Employment” under NJ WARN. However, if the layoff currently is anticipated to be for less than 6 months, then it is not a Termination of Employment under NJ WARN. If, circumstances then cause a layoff originally believed to be for less than 6 months, to extend beyond 6 months, and the extension beyond 6 months is caused by business circumstances not reasonably foreseeable at the time of the initial layoff, notice obligations may kick in when it becomes reasonably foreseeable that the layoff will extend beyond 6 months.

Is the layoff due to termination of operations? Here, there is an exception in NJ WARN for the termination of operations due to a national emergency. However, this analysis is fact sensitive depending on whether the Company continues some operations.

Here, whether or not your business is considered non-essential, and therefore ordered closed by the government, also may impact the analysis.

Timing and Number of Employees Involved: Be aware that the aggregate number of employees laid off in a 30-day period will be used in assessing whether or not the Company has engaged in a mass layoff or transfer of operations.

Big Change This July: NJ WARN currently requires advance notice to employees impacted by a mass layoff, and has financial implications for failing to do so. Importantly, New Jersey recently has expanded this law, described below, that will become effective this July. The expanded law provides for increased notice periods and increased financial implications for mass layoffs or transfers of operations. As such, timing must be considered in your business strategy.

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Expansion of NJ WARN takes effect in July 2020. Starting in July 2020, covered employers will be required to provide 90 days’ notice to employees, and will have to pay certain severance to impacted employees, regardless of whether employers meet the notice requirement.

The expanded law also extends the obligations of notice and severance to workforce reductions impacting 50 or more employees, regardless of full-time or part-time status.

Employers who find themselves needing to terminate 50 or more employees in New Jersey for reasons related to COVID-19 -- including as a result of temporary layoffs and government-ordered shut downs -- should contact legal counsel for assistance with analyzing the application of, and possible exceptions to, NJ WARN.

Private Employers Have Flexibility in Implementing Compulsory COVID-19 Vaccination Policies, but Should Exercise Caution Published in DRI’s The Voice – November 11, 2020

By Kerri A. Wright & Melanie D. Lipomanis An effective vaccine could protect our populations from the devastating social and economic effects of COVID-19 and allow employers to operate at full capacity. However, experts agree that the efficacy of any vaccine likely will require the majority of us to be inoculated before we see the rates of infection diminish. This condition will apply equally to an employer’s workforce. For this reason, employers have started asking counsel whether they can require their employees to be inoculated once a safe and effective vaccine becomes available.

According to a survey conducted in August 2020, thirty-five percent of Americans surveyed said they decidedly would not get a vaccine when one becomes available. That rate climbs to forty-one percent among parents with children under eighteen. A more recent survey conducted in September 2020 indicates that number is now at forty-nine percent. So, how do we move toward a fully functioning society, including restoring robust business operations, when such a large number of individuals are unwilling to be inoculated? That is the question many public and private employers, school districts, and colleges and universities are beginning to contemplate as we inch closer to an effective means of disease prevention.

While COVID-19 may be novel, mandatory inoculations are not. In a case dating back to 1905, the Supreme Court addressed mandatory vaccinations in regard to a smallpox outbreak in Massachusetts. In Jacobson v. Massachusetts, 197 US 11, 88 (1905), Jacobson objected to a regulation requiring compulsory vaccinations, arguing it was in “derogation of the rights secured to the defendant by the 14th

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State-mandated vaccination laws have been on the books for the past century and although we generally think of them as applying to children attending day care facilities and schools, many states have enacted laws requiring immunization of certain groups of people, such as healthcare workers, patients, and residents of long-term care facilities.

Amendment of the Constitution of the United States… providing that no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty, or property without due process of law….” Rejecting this argument, the Court ruled that a state law requiring compulsory vaccination of citizens to eradicate disease was a proper exercise of the legislative prerogative to protect the public health, finding “the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Drawing on the logic from then-existing school immunization mandates, the Court held that such regulations do not violate the 14th Amendment right to liberty because they fall within the type of restraints to which every person necessarily is subjected for the common good, and that real liberty for all could not exist if each individual is allowed to act without regard to the injury that his or her actions might cause others. The holding in Jacobson has been a staple of public health law and compulsory vaccinations remain a valid exercise of state power.

State-mandated vaccination laws have been on the books for the past century and although we generally think of them as applying to children attending day care facilities and schools, many states have enacted laws requiring immunization of certain groups of people, such as healthcare workers, patients, and residents of long-term care facilities.

Generally Recognized Exemptions According to the National Conference of State Legislators (NCSL), all states allow exemptions for medical reasons, forty-five states and the District of Columbia have a religious exemption law, and seventeen of those states have philosophical exemption laws allowing individuals and/ or parents to claim an exemption based on their personal, moral, or other beliefs.

Perhaps the most controversial exemptions to compulsory vaccination laws are those for religious and philosophical reasons. Title VII of the 1964 Civil Rights Act prohibits religious discrimination in the workplace. Employers, however, are not required to accommodate the religious beliefs and practices held by employees if doing so involves more than a de minimis cost. This de minimis standard, when analyzed amid the greatest public health and financial crisis in our lifetimes, seems to set a fairly low bar for employers to demonstrate that allowing their workforce to go unimmunized would pose a far greater than de minimis cost to the business. Add to that rubric the fact that Congress has yet to pass any legislation limiting legal liability for employers over COVID-19 infections that occur in the workplace.

Perhaps this lack of action provides further justification for employers to take every conceivable precaution to keep potential COVID-19 carriers out of their workforce and facilities.

Notably, there has seen a sea change in public attitude toward vaccination exemptions following the catastrophic effects of COVID-19, which may result in the federal or state governments preemptively taking up the gauntlet for employers. By way of example, on May 13, 2020, the New York State Bar Association’s Health Law Section Task Force on COVID-19 issued an eighty-three-page report and recommendations on dealing with various aspects of the pandemic. The report states that although “some Americans may push back

43 on the COVID-19 vaccination for religious, philosophical or personal reasons,” “for the sake of public health, mandatory vaccinations for COVID-19 should be required in the United States as soon as it is available.” In support of its position, the bar notes, “Constitutional challenges … have failed, when the individual interests are not strong enough to outweigh the public benefit,” and concludes that the “gravity of COVID-19 presents compelling justification for State legislatures and Congress to mandate a COVID-19 vaccination.”

With this backdrop, it is conceivable that compulsory vaccinations may be on the horizon at the state or even federal level. At a minimum, we would expect to see legislation regarding certain sectors with high risk populations, such as healthcare workers, employees, and residents of elder-care facilities, school districts, universities, and perhaps even employees in the retail and food service sectors.

Navigating Potential Accommodations in the Employment Context While a fully inoculated workforce is ideal, absent federal or state laws mandating inoculation, whether for all citizens or specific sectors and employee groups, employers only can go so far in implementing compulsory vaccination policies. Employers need to be mindful of existing federal and state laws that may be implicated when implementing mandatory employment policies.

The Equal Employment Opportunity Commission (EEOC) issued guidance regarding the flu vaccine on March 21, 2020, in which the agency stated that employers covered by the Americans with Disabilities Act (ADA) and Title VII may require employees to be inoculated for the influenza virus. The EEOC cautioned, however, that employees may be entitled to an exemption from the employer’s mandatory vaccination policy under the ADA, based on a disability, or under Title VII, for the employee’s sincerely held religious beliefs.

In 2009, the U.S. Occupational Safety and Health Administration (OSHA) took a position during the H1N1 pandemic that employers may require employees to submit to influenza vaccines, providing that employees are informed properly of the benefits of vaccinations. OSHA cautioned, however, that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistleblower rights.”

Bottom Line While it is important to check your state laws on the issue, generally an employer may implement a policy mandating its workforce be inoculated once a safe and effective vaccine becomes available. Although the policy should be applied uniformly, the employer will need to consider exceptions to the mandate, on a case-by-case basis, for an employee’s medical condition pursuant to the ADA or his or her sincerely held religious beliefs pursuant to Title VII.

With this backdrop, it is conceivable that compulsory vaccinations may be on the horizon at the state or even federal level.

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Employers Should Plan Proactively to Address the Increased Risk of COVID-Related Claims Under The Conscientious Employee Protection Act Employment Law Monthly – July 2020 Authored by Kathryn K. Forman Employers first became aware of COVID-19’s ultimately tragic arrival in New Jersey just before the start of Spring. And, as the leaves unfurled from the trees throughout late March and early April 2020, so unfurled a forest of new laws that governs the movements of individuals and the functions of businesses in a way most New Jerseyans have never seen before. Even employers who make a good faith effort to abide by the new laws may find themselves defending claims for compensatory and punitive damages and counsel fees and costs if they do not plan for the increased risk of COVID-related allegations of violations of the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. (CEPA), which are likely to emerge as a result of this new authority.

There have been executive orders requiring people to shelter in place and dividing businesses into non-essential and essential categories; there have been emergency expansions of existing state and federal leave laws, and a new emergency federal sick leave law; there are new occupational safety and health guidelines for employers to learn and follow. Prolific guidance relating to the effects of the pandemic on every imaginable topic continues to sprout from government agencies.

As everyone impacted by these directives has attempted to navigate new responsibilities and entitlements, there have been, and inevitably will be, employers and employees who find themselves at odds with one another. As a result, potential CEPA claims lurk within this new landscape. In fact, lawsuits alleging that plaintiffs were retaliated against for complaining about their employers’ early responses to the looming threat of coronavirus already are hitting the docket.

An employer (including an individual supervisor acting on behalf of the employer) may be liable for violating CEPA if an employee can show that the employer retaliated against the employee for complaining about conduct that the employee reasonably believed to violate a law, a rule or regulation promulgated pursuant to law, a clear mandate of public policy, or was fraudulent or criminal, or in the case of an employee who is a licensed or certified healthcare professional, constituted improper patient care. It is well-established that generalized grievances are not entitled to CEPA protection.

Nevertheless, considering the rapid growth of authority in this area, employees searching for legal support to kindle their COVID-related complaints may not have to look far to find it. By way of example, the detailed guidance issued by the Occupational Safety and Health Association (OSHA) and the Center for Disease Control (CDC) may have created a new realm of protected activity.1 Pre-COVID, the possibility that an office worker could invoke CEPA by alleging retaliation resulting from a complaint about a colleague’s hygiene might have seemed absurd; now, such a complaint actually may pass muster as legally protected activity, depending on the circumstances.2 Prudent employers now will exercise extreme care in addressing such complaints.

Employees need not prove that their employer’s conduct actually violated or would have violated the law, only that they reasonably believed such a violation had occurred or was imminent. As a result, even where they have not acted illegally, employers may find themselves needing to evaluate and manage their CEPA exposure where employees may have voiced COVID-related

45 concerns, and where independent, legitimate circumstances such as poor performance, policy violations, or an employer’s economic circumstances necessitate adverse action against such employees. A proactive approach should include the following measures: 1. Maintain a policy that directs employees to report COVID-related employee complaints to Human Resources, Compliance, or another specifically designated department or individual.

Ensure that employee reporting policies are up-to-date, well-publicized, and easy to follow. The goal of such policies is to enable employers to address COVID-related concerns as they arise, before the complained-of conduct escalates.

2. Be prepared to promptly investigate all COVID-related complaints, and to take remedial action in response to substantiated complaints.

Prepare in advance for investigation of COVID-related complaints. Evaluate whether all complaints, or complaints of a particularly sensitive nature, should be independently investigated by a third party, and whether the investigation should be conducted by an attorney, under privilege.

Investigations should be thorough and well-documented, with clear findings as to whether a complaint was or was not substantiated, and what action was taken as a result. These investigation files should be maintained separately from employee personnel files to the extent that they might implicate the confidentiality provisions of the Americans with Disabilities Act. While it is not required by CEPA that an employer investigate or endeavor to remediate each alleged violation of law, employers are often better-positioned to defend against retaliation claims when they are able to produce documentation demonstrating that they ensured thorough investigation of the underlying complaints and acted reasonably in accordance with the findings. Employers are encouraged to contact employment counsel to discuss strategy, the scope of the investigation, confidentiality concerns, and addressing any potentially problematic or high-risk behavior.

3. Train employees and supervisors on COVID precautions, anti-retaliation policies and the application of such policies to COVID-related employee complaints.

Train employees on the importance of following the employer’s safety measures, and make sure that all supervisors and company leaders set a clear example by following them. Supervisors should be reminded of the policy to report complaints immediately, and that COVID-related complaints should be treated as being within the anti-retaliation policy. Separately, train or retrain supervisors on implementing the employer’s policies against retaliation, reminding them to escalate any COVID-related complaints of which they become aware to the individual, unit, legal advisor, or committee assigned to investigate such complaints. The message conveyed to supervisors in connection with such training should be that all COVID-related complaints, regardless of their apparent severity, or the formality with which they are made, must be treated seriously, and as potentially legally protected communications.

4. Ensure consistency in measuring performance and issuing discipline.

Consistency and documentation are critical to mitigate the risk of claims that legitimate employment actions are a pretext for retaliation as the result of an employee’s COVID-related complaints.

To the extent practicable, standardize performance metrics, especially if they are changing as the result of the impact of COVID on the workplace. Document all circumstances where employees are excused, for COVID-related reasons, from meeting performance metrics, and ensure that such standards are applied consistently for all employees similarly impacted. Where employees are expected to continue meeting pre-COVID metrics, consistently document each instance where employees fall short, and address such failures equitably for all similarly situated employees.

Continue to adhere to any progressive discipline standards set forth in employer policies, and apply consistent discipline for similar violations. Document issues thoroughly and maintain documentation in a designated location.

46 5. Ensure objectivity in taking cost reduction measures.

As a result of the severe economic downturn resulting from COVID, many employers will need to limit certain job perquisites or take more austere measures such as layoffs, furloughs, wage reductions, and restructuring. Determinations regarding which employees will be impacted should be based on objective, quantifiable data wherever possible. Additionally, it is important that these decisions and the rationale for making each decision is well documented, this includes the rationale for each individual (if not part of a larger group by category, location, or job title).

6. Consult with legal counsel to plan for specific situations.

When it becomes necessary to take adverse action against an employee who may believe he or she has blown the whistle, employers must act with extreme care. Experienced legal counsel can provide guidance as to whether an employee is likely to be able to allege successfully that he or she has engaged in protected activity under CEPA, as well as whether the employer’s independent basis for taking action impacting a protected employee is likely to withstand scrutiny. Counsel further can recommend solutions for reducing exposure in various situations. **** Employers who have walked the whistleblower path before know just how costly it can be to defend against even the weakest of CEPA claims. However, by mapping careful responses to COVID-related complaints, and maintaining consistently applied objective standards and documentation, employers can position themselves to limit the increasing risk of such claims as they move forward through the new normal brought about by this pandemic. ________________________________________ 1

Guidance on Preparing Workplaces for COVID-19, Occupational Safety and Health Administration, https://www.osha.gov/Publications/OSHA3990.pdf.; Interim Guidance for Businesses and

Employers Responding to Coronavirus Disease 2019 (COVID-19), May 2020, Center for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response. html 2

Notably, in 2014, the New Jersey Supreme Court struck down a CEPA claim, holding that an employee’s complaint regarding infection control and hygiene practices did not have a nexus

to any cognizable source of law or public policy. See Hitesman v. Bridgeway, 218 N.J. 8 (2014). There, the court expressly noted that the plaintiff did not demonstrate, at trial, that his complaints had invoked CDC standards. Hitesman, 218 N.J. at 39-41. In light of this decision, the facts and circumstances of any such employee complaints, and whether they were sufficient to put the employer on notice of any CDC or OSHA violations, likely will be determinative.

47

The Return to Work Series: “The Road Back” for Stage 2 and Federal Paid Leave Considerations Employment Law Monthly - June 2020 Authored by Matthew J. Donohue On June 8, 2020, New York City will enter “Phase 1” of the State of New York’s Reopening Plan, which could result in upwards of 400,000 individuals returning to work in the City. Similar reopening plans in New Jersey and Massachusetts have begun to hit the first of several criteria in their respective Reopening Plans. For instance, Governor Murphy announced on June 1st that outdoor dining and certain nonessential retail stores will be allowed to reopen with restrictions on June 15, 2020 as New Jersey begins “Phase 2” of the Reopening Plan (i.e., The Road Back: Restoring Economic Health Through Public Health1) to reopen all businesses throughout the state of New Jersey.

“Essential” businesses currently are operating in full force, and navigating through various federal and state laws, such as the Families First Coronavirus Response Act (“FFCRA”), to ensure their employees receive the appropriate paid leave during the pandemic. However, many of the recently enacted paid leave laws still will be in effect once more businesses reopen, and employers can be penalized under their respective state’s emergency labor rules, if applicable. This article will provide a brief overview of the Reopening Plans, and answer frequently asked questions regarding the federal paid leave that businesses will have as they begin to return to work.

The Road Back to “Normal” On April 27, 2020, Governor Murphy outlined four prerequisites in order for New Jersey to begin its multi-phased economic restart: 1. Sustained Reductions in New COVID-19 Cases New Jersey would need to have a 14 day trend line showing appreciable and sustained drops in new COVID-19 related cases. New Jersey, New York, and Massachusetts -- three of the hardest hit areas in the United States -- all are showing a steady decline as of June 1, 2020.2 2. Expanded Testing Capacities At the end of April, New Jersey had the capacity to test approximately 12,000 individuals per day, which would need to be doubled in order to begin reopening other businesses.3 As of June 1, 2020, Governor Murphy has stated New Jersey has met this threshold due to a deal made with Walmart to permit 18,000 additional pharmacists to perform tests.4 3. Robust Contract Tracing The State has recruited volunteers and paid personnel to identify and trace all contacts of virus. According to CDC guidance, this new and unique profession would require 1300 to 7000 individuals to be hired, and effectively trained, to properly handle New Jersey’s population.

48 4. Safe Locations for Isolation These are sterilized locations in which to isolate, and provide medical -services to any infected individual.

As of June 1, 2020, New Jersey, New York, and Massachusetts all have hit their respective criteria to begin reopening certain businesses, and have used a tiered approach to determine which businesses open first. On June 1, 2020, New Jersey, Massachusetts, and New York (except for New York City) released plans to reopen “Phase 2” businesses which would result in over half a million individuals suddenly returning to the workforce. New Jersey’s “Phase 2” reopening will begin on June 15, 2020.

Below we highlight some important considerations for all employers as we inch closer to a full return of the workforce.

Ignorance Is No Excuse: Penalties for Failure to Provide Paid Leave Although the FFCRA was passed in response to the initial outbreak of COVID-19 in March of 2020, employers must know that employees still are eligible for leave pursuant to the FFCRA until December 31, 2020. Furthermore, the New Jersey Department of Labor adopted emergency rules, effective until ninety (90) days after the Public State of Emergency is lifted, which prohibit an employer from terminating or otherwise penalizing an employee during New Jersey’s “Public Health Emergency and State of Emergency” if the employee requests or takes time off from work under certain circumstances.

If the employee presents a recommendation of a medical professional licensed in New Jersey that the employee has, or is likely to have, an infectious disease (i.e. COVID-19), which may infect others at the employee’s workplace, the employee may take any federal or state leave to which the employee is entitled without being penalized or terminated.

Employers that violate these rules will be forced to re-hire the employee and could face $2,500 fines for each infraction. The Department of Labor recently extended the timeline for public comment on the concurrently proposed rules which mirror the emergent rules.5 Comments will be accepted until June 19, 2020, and the proposed rules will be readopted in accordance with the normal rulemaking requirements, but be subject to amendment. Similar penalties are being imposed for businesses in New York if an employee is penalized for taking leave related to COVID-19.6 Below are answers to some frequently asked questions regarding the FFCRA, Department of Labor Regulations, and the intersection of state paid leave: 1. Can an employee utilize leave pursuant to the FFCRA (e.g. Emergency Paid Sick Leave or Emergency Childcare Leave) after the State of Emergency is lifted?

Yes, so long as the employee uses it prior to December 31, 2020, and meets the necessary conditions to qualify for the leave. Emergency Paid Sick Leave and Emergency Childcare Leave are not contingent on the State of Emergency remaining in effect.

2. Does the FFCRA apply to private employers with over 500 employees? Do the emergency Department of Labor rules apply to private employers with over 500 employers?

The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. Publicly traded companies with less than 500 employees would qualify as a “private employer” and be required to provide employees with FFCRA leave. However, most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by the FFCRA. Therefore, they are not covered by the expanded family and medical leave provisions of the FFCRA but do qualify for FFCRA paid leave.

Although private employers with over 500 employees are not covered under the FFCRA, these employers are subject to their respective state laws, such as the emergency New Jersey Department of Labor rules, which broadly define employer as “any individual, partnership, association, corporation,

and the State and any county, municipality, or school district in the State, or any agency, authority, department, bureau, or instrumentality thereof, or any person, or group of persons, acting directly or indirectly in the interest of an employer in relation to an employee.” This means that private employers, regardless of their employment size, cannot penalize any employee for utilizing any state leave related to COVID-19. In addition to these penalties, employers could also be exposed to a wrongful termination lawsuit, such as the one filed by a New Jersey employee who alleges he was terminated after informing his employer that the employer’s COVID-19 safety measures were insufficient.

3. If an employee utilizes FFCRA leave, can the employer require that the employee utilize similar paid state leave concurrently?

No, the federal leave must be taken separately from any state leave pursuant to emergent rules adopted by the United States Department of Labor effective from April 2, 2020 through December 31, 2020.7 In addition to federal emergency paid leaves, all New Jersey and Massachusetts workers can utilize any earned sick leave after the expiration of FFCRA leave under their respective Earned Sick Leave Laws in addition to family leave insurance benefits. If an employee is utilizing unpaid FFCRA leave, he/she would be permitted to supplement the leave with paid time off8 (e.g., vacation, personal time, etc.)

4. Can an employer require an employee to pay medical insurance contributions when the employee utilizes either Emergency Paid Sick Leave or Emergency Childcare Leave?

Employees in a group health plan who utilize the emergency federal leave must continue to pay the same portion of the premium via the same method the premium normally is deducted. If for some reason premiums are adjusted, the employee is required to pay the new premium contribution on the same terms as other employees.

An employee who takes expanded family and medical leave or paid sick leave is entitled to continued coverage under the employer’s group health plan on the same terms as if the employee did not take leave.9 5. Do self-employed individuals receive any benefits under FFCRA? Certain individuals who are self-employed are eligible for a tax credit pursuant to the FFCRA. If the self-employed individual is unable to work due to the same factors as a qualified employee, he or she can receive either $511 or $200 per day (for sick leave and family leave, respectively) or 67% of his/ her average daily self-employment income, whichever is lower. Those who are self-employed should maintain any medical recommendation or similar documentation to prove their eligibility for the credit.

6. If an employer provides in excess of 80 hours of Emergency Paid Sick Leave to an employee, can the employer receive tax benefits for the excess hours?

An employer always may choose to pay a greater amount of sick leave than required under federal law, but the employer will not be permitted to take any additional tax credit above the 80 hours. Moreover, the tax credit is only available for paid leave pursuant to the FFCRA, and any similar state leave would not qualify for the tax credits included in the FFCRA. Source: https://covid19.nj.gov/faqs/announcements/all-announcements/governor-murphy-announces-%E2%80%9Cthe-road-back:-restoringeconomic-health-through-public-health%E2%80%9D

1

2

Source: https://www.nj.gov/health/cd/documents/topics/NCOV/COVID_Confirmed_Case_Summary.pdf;

https://www.mass.gov/doc/covid-19-dashboard-may-31-2020/download 3

Source: https://youtu.be/Zno1a8ltVGc?t=730

4

Source: https://www.njtvonline.org/news/video/walmart-pharmacists-to-expand-new-jersey-covid-19-testing/

5

Source: https://aboutbtax.com/Q7A

6

Source: https://labor.ny.gov/workerprotection/laborstandards/coronavirus-complaints.shtm

7

Source: https://www.dol.gov/agencies/whd/ffcra

8

Ibid.

9

Source: 29 U.S.C. 2614(c); see also 29 U.S.C. 1182 and 26 CFR 54.9802-1(e)(2)(i); 29 CFR 2590.702(e).

49

50

OSHA Enforcement Guidance for Recording Cases of COVID-19 Goes Into Effect Today, May 26, 2020 Client Alert – May 2020 Authored by Melanie D. Lipomanis The new guidance memorandum from the U.S. Department of Labor’s Occupational Health & Safety Administration (OSHA) regarding employers’ obligations to record confirmed cases of COVID-19 goes into effect today and rescinds OSHA’s prior guidance on this topic.

COVID-19 is considered a recordable illness under OSHA regulations and employers must record confirmed cases if the following criteria are met: 1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC); 2. The case is work-related as defined by 29 CFR § 1904.5; and 3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

According to the memorandum, OSHA will exercise enforcement discretion in determining whether an employer has complied with its reporting obligations, taking into consideration the “reasonableness of the employer’s investigation into work-relatedness,” and evidence available to the employer, including evidence that a COVID-19 illness was contracted at work. While the Administration does not expect employers to conduct intrusive investigations into confirmed cases, at a minimum, employers should: (1) ask an infected employee how he or she believes the infection was contracted, (2) inquire about work and non-work activities that may have exposed the employee to infection, and (3) review the employee’s work environment.

Although OSHA acknowledges that attributing COVID-19 infection to the workplace may be a difficult task, evidence indicating an infection was “work-related” following a review of the work environment may include: several positive cases in the workplace develop among employees who work in close proximity to each other; a newly infected employee works in close proximity to a co-worker with a recent confirmed infection; or an infected employee works frequently and in close proximity to the general public in a geographical area where rates of COVID-19 infection are prevalent.

Conversely, if, after an employers’ reasonable and good faith inquiry -- and none of the foregoing circumstances are present -- the employer cannot determine with any certainty whether the employee contracted COVID-19 in the workplace, then the employer is under no obligation to report the event.

The new guidance will remain in effect until further notice. The OSHA memorandum is available here.

Please do not hesitate to contact us with any questions you may have regarding OSHA compliance or to discuss your specific circumstances or the impact of COVID-19 on your business.

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It is critical for employers to draft written policies that will protect employers, customers, and management alike while not violating employees’ rights under federal and state laws, such as the Americans with Disabilities Act (“ADA”).

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Lessons Learned From Walmart: Best Practices For Employers Regarding COVID-19 Preparation and Communication Employment Law Monthly - April 2020 Authored by Vito A. Gagliardi, Jr. & Matthew J. Donohue The first COVID-19-related wrongful death lawsuit against an employer has been filed, specifically in Illinois state court, against Walmart1. The Complaint alleges that the victim -- an employee -- likely contracted his fatal case of COVID-19 because of the gross negligence of his employer, Walmart. At the time of the incident, Walmart purportedly did not have any procedures in place to prevent the spread of the virus, such as policies enacting social distancing, sterilization of common areas, communicating with employees who came into contact with the victim, and others.

Although most of the workforce currently is shuttered or working remotely, “essential” businesses -- such as grocery stores, manufacturers, and health care facilities -- need their full workforce in the workplace now more than ever. Unfortunately, some of these employees will contract COVID-19. However, employers should learn from the unfortunate Walmart incident by taking precautionary measures to best protect their employees and clients, while simultaneously limiting the spread of the virus if COVID-19 reaches the workplace.

Policies and Procedures for Precaution 1. What are some basic steps that every employer, big or small, should be taking right now?

According to the Centers for Disease Control and Prevention2 (“CDC”), every employer should be taking the following steps as soon as practicable: • enact written infectious disease response plan; • implement basic infection prevention measures; and • develop procedures for prompt identification and isolation of infected individuals.

It is critical for employers to draft written policies that will protect employers, customers, and management alike while not violating employees’ rights under federal and state laws, such as the Americans with Disabilities Act (“ADA”). Employers (and their managers/supervisors) should not be reacting on the fly if, or when, an employee reports experiencing symptoms of COVID-19 in the workplace.

2. What policies and procedures should an employer institute? Are certain policies and procedures mandated pursuant to the law?

• At a minimum, all employers should institute policies and procedures that address the following: • The testing of employees, if desired, and how and where these tests will be conducted; • The provision of cleaning supplies, masks, and gloves to be provided to employees; • The reporting mechanism for an employee experiencing symptoms, or who has been exposed to COVID-19 (employees need to be required to report same to a supervisor before reporting to work); • The manner and timing of communication to other employees of their possible exposure; • The extent to which the workplace will be closed, in whole or in part, once an employee is diagnosed with COVID-19; and • The extent to which enhanced cleaning of common surfaces will be conducted and maintained.

This list is not exhaustive, and the policies may need to be altered and updated rapidly due to the constant changing of both federal and state laws. Governor Murphy recently enacted Executive Order #122 (issued on April 7, 2020) which now requires all “essential” retail business to adopt and enforce policies that

53

include, but are not limited to: 1. providing sanitation materials to employees and customers; 2. requiring all persons to wear cloth face coverings unless doing so would “inhibit the individual’s health”; and 3. providing employees with masks and gloves at the employers’ expense3.

Many federal and state institutions are providing guidance to employers on these rapidly evolving laws. For example, the Equal Employment Opportunity Commission (“EEOC”) has provided an updated list4 (updated as of April 17, 2020) detailing what actions an employer can take without violating the ADA, which includes, but is not limited to: • Asking employees about symptoms; • Monitoring employees’ temperatures via forehead thermometer; • Screening applicants after job offer for symptoms, delay start date, or withdraw job offer if need to fill job immediately; and • Disclosing the name of COVID-19 positive employee to a public health agency.

Be consistent in applying these policies to all employees -- from management on down. By enacting concise and clear written policies now, employers will be prepared whatever should come to pass.

The more employees who are aware of the situation, the better protected both the employer and employees will be.

Reacting To An Infection in the Workplace Below are some of the most common scenarios faced by employers and the questions that are triggered by these scenarios when an employee begins experiencing COVID-19 symptoms in the workplace: 1. An employee comes to work, and the employer suspects the employee may be experiencing symptoms of COVID-19.

However, after taking the employee’s temperature, the employee does not have a fever. Can the employer still demand that the employee head home?

Yes, pursuant to guidance from the EEOC5, an employer can command an employee to go home -- without violating the ADA -- if the employer reasonably suspects the employee has symptoms of COVID-19. It is important to remember that, although a fever is a common symptom of COVID-19, individuals still can be infected without having a fever. The employer should be consistent in applying the same level of scrutiny to every employee and memorialize the company’s reasoning to avoid potential discrimination litigation.

2. An employee notifies his employer that he has been tested and diagnosed with COVID-19. What are the first steps the employer should take with respect to the infected employee?

• Ask the employee to identify all coworkers and customers or clients with whom the employee interacted in the past 14 days; • Ask the employee to identify any location in the workplace where the employee was present within the past 14 days; and • Inform the employee that the employer will not reveal the employee’s identity without the employee’s consent.

3. Should the employer place documentation related to the infected employee in her or her personnel file?

54 No. Any documentation generated as a result of an employee being sent home due to symptoms or testing positive should be kept in a separate medical file. This includes the documentation that is sent to any public health agencies.

4. What steps should the employer take with respect to any employees who potentially came into contact with the infected employee?

The employer should advise these employees that an individual in the workplace is either suspected to have or has tested positive for COVID-19. The employer should state that the infected employee recalled potentially coming into contact with the employee, and, out of an abundance of caution, the employee should self-quarantine for at least 14 days. The employer should NOT reveal the infected employee’s identity -- or even provide a vague description of the employee (e.g. he worked in billing for the past 10 years) -- unless the employer has obtained a waiver from the infected.

5. What if an employee guesses the identity of the infected?

The employer should provide a non-response that the company can neither confirm nor deny the identity of the infected individual due to federal and state laws.

6. How broad does the communication need to be in terms of which employees are notified?

In most instances, e-mail is a sufficient form of communication. However, if an employer does not have an employee’s e-mail address and must rely on verbal communication, the employer should memorialize the conversation with the employee. Employers should err on the side of being over-inclusive as to how many employees are notified. The more employees who are aware of the situation, the better protected both the employer and employees will be.

7. Are notifications required to be sent within a certain timeframe, or contain certain information?

There is no state or federal law regarding notifications related to an employee afflicted with COVID-19 that explicitly provides: (1) how many employees must be notified; (2) the details of the notification; or (3) when the employees need to be notified. These determinations should be made based on the particular circumstances of the company’s operations. The notification should be concise, clear, and sent quickly. Employers need to keep in mind the privacy concerns of the infected employee (e.g. ADA, HIPAA, etc.) while striving to remain calm and honest with all their employees regarding the situation.

8. Is there an obligation to tell non-employees that may have interacted with the infected, such as clients or outside vendors?

There is no explicit requirement that an employer must communicate with clients and outside vendors in the event of COVID-19 reaching the workplace. However, if an employer definitively knows that a client or outside vendor came into contact with an employee afflicted with COVID-19, the employer should notify them as soon as practicable.

9. Beyond what is required, what are the best practices?

• Establish clear and concise protocols. For example: • Employees shall be provided with a supply of gloves and masks prior to entering the workplace each day; • Masks and gloves must be worn at all times; and • Prior to the start of the workday, the employee shall report to the HR Office where the employee will have his/her temperature taken via forehead thermometer and recorded.

• Document as much as possible.

• Establish lines of communication for employees, and encourage them to report their symptoms or any hardships they may be experiencing as a result of COVID-19.

• If someone is suspected of having symptoms or tests positive, inform anyone who came into contact with the employee that they should self-quarantine.

• Notify the entire staff -- in a calm, reassuring manner -- that an employee may have contracted

55

•

COVID-19, anyone who came into contact with the employee is being asked to stay home in an abundance of caution, and the premises shall be cleaned in accordance with CDC guidelines.

Let your employees know with whom they should communicate if they are experiencing symptoms or hardships as a result of COVID-19. If an employee requests assistance understanding the new federal and state laws on COVID-19 related leave, assist them. Do not ignore the situation, and be open -- to the extent allowed under the law -- with your employees.

10. What, if any, liability could an employer face for failing to notify employees who may have been exposed to a COVID-19 positive employee?

• At this stage, it is unclear the extent of liability an employer may face as a result of its failure to notify employees or take any of the steps suggest above. However, the Walmart Complaint provides some insight into what Plaintiff’s lawyers may allege. The Complaint alleges that Walmart: • Failed to implement and enforce social distancing; • Failed to provide personal protective equipment; • Failed to warn employees that other employees were experiencing symptoms; • Failed to adequately address and ignored employees who communicated they were experiencing symptoms; and • Failed to institute the policies and procedures established by the CDC. • In short, employers should avoid the “failures” alleged against Walmart.

The government recognizes that the prudence which it is advocating can have a negative impact on companies’ productivity. However, having to contend with employees who allege they are sick, or the survivors who allege that the decedent became sick, all because of their employer’s failure to keep them safe will provide for a much more powerful negative impact. Stay safe. ________________________________________ 1

Source: https://www.courthousenews.com/wp-content/uploads/2020/04/WandoEvansSuit.pdf

2

Source: https://www.osha.gov/Publications/OSHA3990.pdf

3

Source: https://www.nj.gov/infobank/eo/056murphy/pdf/EO-122.pdf

4

Source: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

5

Source: https://www.eeoc.gov/facts/pandemic_flu.html

If an employee requests assistance understanding the new federal and state laws on COVID-19 related leave, assist them. Do not ignore the situation, and be open -- to the extent allowed under the law -- with your employees.

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Guidance Released on New Jersey’s Equal Pay Act Employment Law Monthly - November 2020 Authored by David L. Disler & Kathryn K. Forman It has been more than two years since Governor Phil Murphy signed into law what he described as the “most sweeping equal pay legislation in America.” This legislation, known as The Diane B. Allen Equal Pay Act (the “Act”), was enacted as an amendment to the New Jersey Law Against Discrimination (NJLAD), and sought to eliminate the pay disparity gap. While it is hard to argue with the Act’s intention, many employers have struggled with its implementation due to its expansive nature, which makes defending lawsuits difficult. Broadly written, the Act leaves many questions unanswered, forcing employers to guess how courts might interpret ambiguous provisions, and its mandates remain in place notwithstanding the challenges many employers currently are facing as a result of the COVID-19 pandemic. Fortunately, employers can be aided in their understanding and application of the Act by guidance issued by the New Jersey Division of Civil Rights (“DCR”).

Background On The Law The Act was intended to apply broadly and to make it easy to file a claim. Generally, it applies to all businesses with at least one employee whose primary place of work is in New Jersey, regardless of size, number of employees, or type of employer, public or private. To sue, an employee simply has to show (s)he: (1) is a member of a protected class as recognized by the New Jersey Law Against Discrimination (NJLAD); (2) is paid less than an employee who is not a member of the same protected class; and (3) is doing work that is substantially similar to the other employee.

The Act only permits three defenses: (1) seniority system; (2) merit system; and (3) meeting a five-part test to establish that a pay differential is based on “legitimate bona fide factors.” An employer’s lack of intent to violate the law, or lack of knowledge of the violation, are not defenses. The Act does not define a seniority system or a merit system. As a result, employers most often rely on the five-part test, which requires the employer demonstrate all of the following: (1) the difference in pay is based on one or more “legitimate bona fide factors” (the statute provides a non-exhaustive list that includes training, education, experience, or quantity/ quality of production); (2) the factors cannot be based on or perpetuate a differential in compensation based on a characteristic of a protected class; (3) the factors must be applied reasonably; (4) the factors must account for the entire wage differential; and (5) the factors must be related to the job and based on legitimate business necessity.

For a more detailed description of the Act, please refer to our article available here.

Guidance From The Division Of Civil Rights The guidance issued by the Division of Civil Rights (“DCR”) sets forth the DCR’s interpretation of some of the Act’s ambiguous provisions. Not surprisingly, the DCR’s interpretations are broad and generally favor employees.

Broader Than Equal Pay for Equal Work: DCR made clear the Act goes beyond simply protecting against unequal pay for equal work; the Act protects against unequal pay for “substantially similar work,” which DCR determined was broader than “equal work.” DCR defines “substantially similar work” as a combination of the: (1) skill; (2) effort; and (3) responsibility required to perform an employee’s job duties. When determining whether work is substantially similar, all three factors should be examined together.

Work still can be “substantially similar” notwithstanding minor differences in skill, effort, and responsibility. Thus, neither the job title nor the work performed needs to be identical. The DCR provides the following example: in a school setting, janitorial and food service jobs may be substantially similar in terms of skill, effort, and responsibility because both may involve substantial amounts of lifting and cleaning, even though the job duties are not exactly the same.

Furthermore, DCR made clear that job descriptions -- while potentially helpful -- will not be dispositive if they do not reflect the actual duties and responsibilities being performed by the employees.

The DCR also defined the terms “skill,” “effort,” and “responsibility.” “Skill” refers to the experience, ability, education, and training

57

required to perform a set of job duties. These must be skills actually necessary to perform a job, as opposed to the skills a particular employee just happens to have.

“Effort” means the requirements of a job as a whole and takes into account the amount of physical or mental exertion required to complete a job. An employee’s working conditions also may be relevant to the amount of effort required to perform a job. For example, a job that requires an employee to be on her feet all day likely would require more physical effort than a more sedentary job. Similarly, a job requiring employees to work long hours or meet late-breaking deadlines may require more mental exertion than a job that does not.

“Responsibility” refers to the job duties required, as well as to the degree of discretion and accountability required to perform the job.

Concerning the degree of an employee’s discretion and accountability, an employee who supervises others, makes high-level decisions, or enacts policies and procedures may have different responsibilities than an employee who does not. For example, as DCR notes, an executive chef likely has more responsibility than a line cook because the executive chef has more discretion, supervises others, and makes high-level decisions. However, minor or occasional differences in responsibilities will not prevent jobs from being substantially similar. Concerning an employee’s job duties, DCR provides the example of a sales clerk, who occasionally may be asked to sweep up if a customer breaks a glass, despite that salespeople generally are not responsible for sweeping the floor. According to DCR, this would result in only a minor or occasional difference in responsibility, and such a difference would not prevent the sales clerk from being considered comparable to sales clerks in other departments if their duties otherwise were substantially similar.

Additionally, “compensation” includes not only base wages, commissions, overtime pay, bonus pay, merit pay, and stock options, but also cash and non-cash benefits, including but not limited to insurance, vacation time, and retirement funding.

Wage Comparison By its very nature, the Act requires a comparison of wages between two or more employees, which requires an employer to identify employees to compare with an employee who claims to have been aggrieved by a violation of the Act. The Act states that this comparison can be to any employee in “all of an employer’s operations or facilities” but is silent as to whether those operations or facilities are required to be located in New Jersey. The DCR clarified that the Act does not preclude an employee from suing even if all of her comparators are located outside New Jersey. Therefore, a New Jersey employee may file a lawsuit seeking the salary being paid to a California employee who performs substantially similar work to that of the New Jersey employee. However, the DCR recognizes that an employer may defend differences in compensation for employees in different geographic locations if the employer can show that those differences are based on differences in cost-of-living or in relevant labor markets in those areas and are not the result of discrimination.

Seniority and Merit System As mentioned above, the Act did not define clearly a seniority system or a merit system, i.e. two of the three possible employer defenses.

The DCR defines each of these narrowly, although does allow some employers who properly draft and implement a policy that provides defined criteria to utilize these as valid defenses.

According to the DCR guidance, a “system” is a plan, policy, or practice that is predetermined or predefined by the employer, and is used by managers and others to make compensation decisions. It must be applied uniformly to employees in good faith without regard to membership in a protected class. The DCR cautions that ad hoc determinations by an employer regarding what each individual employee is “worth” to the company do not constitute a “system.” Thus, a seniority system recognizes and compensates employees

58

The Act provides no clarity as to whether employers can defend equal pay lawsuits by justifying compensation decisions based on an employee’s prior compensation, and the DCR provides little guidance on this issue.

59 based on length of service with the employer. A merit system provides for variations in pay based upon employee performance measured through legitimate, job-related criteria. Although the DCR guidance does not require that a merit system’s criteria be objective or quantifiable, it is anticipated that merit systems featuring such criteria may be more likely to withstand challenges.

Prior Salary History Another recent amendment to the NJLAD prohibits employers from asking job applicants about their current salaries. For additional information about this law, please refer to our article, available by clicking here. However, prior to that law’s enactment, employers typically asked about current salary to base the employee’s new salary on his or her previous salary. Many argued this common workplace practice furthered institutionalized discrimination against women and minorities.

The Act provides no clarity as to whether employers can defend equal pay lawsuits by justifying compensation decisions based on an employee’s prior compensation, and the DCR provides little guidance on this issue. The DCR noted that it “will depend on the specific factual circumstances” but cautioned that reliance on salary history may perpetuate a differential in compensation based on membership in a protected class where there is a preexisting wage gap for members of that protected class. Based on this guidance, employers should be wary of defending such lawsuits based purely on an employee’s prior salary.

Other Guidance Prior to the issuance of the DCR guidance, the United States District Court for the District of New Jersey evaluated whether the Act applied retroactively to the time period preceding its July 2018 enactment, and concluded that it did not.1 Recommendation Although the guidance provided by the DCR does not make it easier for employers to comply with or defend against claims arising under the Equal Pay Act, the guidance provides some clarity to support employers in preparing appropriately for potential lawsuits.

Employers should consider the following:

Review and Update Job Descriptions: Employers should ensure their job descriptions accurately reflect their employees’ actual duties and responsibilities. Inaccurate job descriptions will not be useful when defending a lawsuit under the Act. Conduct An Audit: It is imperative that employers conduct an audit of salaries and benefits to ensure that they are paying employees performing “substantially similar work” the same, or that they can justify any difference in compensation. To ensure effectiveness, the audit must extend across the country (or even overseas), and not just to all New Jersey facilities.

Review or Create Salary and Benefit Policies: Employers should establish policies and procedures that outline specific criteria that are used when making salary and benefit determinations. The more clearly defined criteria and the less individual discretion allowed, the easier it will be to defend lawsuits under the Act. Consistently Follow Existing Policies: Employers also should ensure that they follow existing salary policies consistently, and that any exceptions are well-documented and based upon legitimate, non-discriminatory criteria.

Document: Employers must ensure they have proper documentation outlining the basis for each salary decision (both initial salary offers, as well as annual raises/bonuses). Documentation will be critical to establishing a defense under this Act. This is especially important because the Act’s statute of limitations allows employees to challenge salary decisions years later. As a result, the individuals who made the initial salary decision may no longer be with the company, and it will be important for remaining managers to understand the justifications for the decisions of their predecessors.

Training: Employers should provide management training to ensure compliance with company procedures with regard to salary and benefit determinations.

1

See Perrotto v. Morgan Advanced Materials, PLC, 2:18-13825, 2019 WL 192903, at *2-3 (D. N.J. Jan. 15, 2019).

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NJ Passes Significant Employment Laws Aimed At Providing Additional Protections For Employees Employment Law Monthly – January 2020 Authored by David L. Disler What Employers Need To Know This past week, Governor Murphy signed into law six employee-friendly bills. Five of the six bills focus on penalizing employers who misclassify employees as independent contractors, while the sixth provides employees with greater protections during “mass” layoffs.

The key takeaways from these bills are: (1) the Commissioner of Labor has the authority to issue a stop work order against any employer who violates New Jersey’s wage and hour laws (i.e. require the employer to stop all business operations at that location) and impose monetary penalties against employers for misclassifying workers: (2) employees may sue their employers for retaliating against them for inquiring or complaining about being misclassified; (3) businesses using other companies to provide workers to perform labor or services for their business will be jointly liable for violations of New Jersey’s wage and hour law and employer tax law; and (4) employers who terminate 50 or more employees must provide 90-days’ notice and pay one week of severance pay for every year the employee has been with the company.

What’s New Specifically, the requirements of these six bills are as follows: 1. Stop Work Orders (A5838) The Commissioner of Labor now has the authority to issue a stop work order against an employer upon determining the employer is not in compliance with New Jersey’s wage, benefit, or tax laws. A stop-work order issued under this law requires an employer stop all business operations at every location where the Commissioner finds a violation occurred. It remains in effect until the Commissioner issues an order releasing the stop work order upon a finding that the employer has agreed to pay the required wages and has paid any wages or penalty owed. Employers that refuse to comply with the stop work order can face fines of up to $5,000 per day.

Employers have only 72 hours to appeal and contest the stop work order before the Commissioner. After that time, employers will have to file an emergent action seeking injunctive relief in the New Jersey Superior Court and demonstrate that the stop work order was issued in error. The law takes effect immediately.

2. Financial Penalties (A5839) The Commissioner of Labor also has the ability to fine employers for violations of New Jersey’s wage, benefit, or tax laws in connection with failing to classify employees properly. Of particular importance, the Commissioner may issue an administrative “misclassification penalty” up to $250 per misclassified employee for the first offense and up to $1,000 per misclassified employee for every subsequent violation. The employer also may be required to pay up to 5% of the misclassified employee’s gross earnings as an additional penalty that will be paid to each misclassified employee (creating an incentive for these individuals to report potential violations). The law takes effect immediately.

3. Private Cause of Action for Retaliation & Posting Requirement (A5843) Employers are prohibited from retaliating against employees who either inquire or complain about being misclassified or institute a proceeding regarding their misclassification. Of critical importance, employees may file a retaliation lawsuit against their employer for being discharged or otherwise discriminated against for complaining or inquiring about their misclassification. Penalties for employers that violate this law can be significant. An employer who violates this provision can be found guilty of a disorderly person offense (i.e., a criminal conviction) and subject to a fine up to $1,000. The employer also will be required

61 to offer reinstatement to discharged employees, pay the employee all reasonable legal costs, pay the employee all wages and benefits lost as a result of the discharge or discrimination, and pay punitive damages equal to two times the lost wages and benefits.

Employers also are required to post notices at their places of employment related to misclassification. The notice must explain: (1) the prohibition against employers misclassifying employees; (2) the standard applied by the Department to determine whether one is an employee or an independent contractor; (3) the benefits and protections to which an employee is entitled under State wage, benefit and tax laws; (4) the remedies under New Jersey law to which workers affected by misclassification may be entitled; and (5) information on how a worker or a worker’s authorized representative may contact, by telephone, mail and e-mail, a representative of the Commissioner to provide information to, or file a complaint with, the representative regarding possible worker misclassification.

This law takes effect April 1, 2020.

4. Joint Liability for Employers Using Staffing Agencies (A5840) Businesses using other companies to provide workers to perform labor or services for the business will be liable (along with the employing company) for any violations of New Jersey’s employer tax law. This expands a recent change to the law which only required joint and several liability for violations of the wage and hour law. The law also expands liability to any person acting on behalf of the employer. This includes owners, directors, officers, or managers. The law takes effect immediately.

5. Sharing of Information by the Department of Treasury to Department of Labor (S4228) The Division of Taxation is permitted to provide information (such as tax information statements, reports, audit files, returns, and investigation reports) to the Department of Labor & Workforce Development. This transfer of information likely will assist the Department in investigating any wage and hour violations, thereby increasing the number of claims brought against employers. The law takes effect immediately.

6. Mass Layoffs (S3170) The new law amends New Jersey’s mass layoff law. Under the law, an employer with 100 or more employees must provide 90-days’ notice any time it undergoes a layoff of 50 or more full or part-time employees in any 30-day period. Employers that provide employees with less than the 90-days’ notice must provide the employees with an additional four weeks of pay. Most significant, however, is the requirement that these employees are entitled to a mandatory severance payment. Each employee must receive one week of severance pay for every year of service with the employer. For example, every employee who has been with an employer for 12 years, would be entitled to about three months of severance pay (i.e., 12 weeks of pay).

This law takes effect on July 19, 2020.

Recommended Actions For Employers Based on these laws, employers must be cautious in utilizing independent contractors. The Governor’s office and the Department of Labor & Workforce have made it clear that they will be examining closely employment classifications to ensure employees are properly categorized. Those employers that are inappropriately classifying employees as independent contractors will face harsh penalties. The Legislature has been working on various iterations of a legislation that would further restrict the use of independent contractors, by revising the test to determine an employee vs an independent contractor. Porzio is keeping a close eye on pending legislation in this area.

For the time being, employers and HR professionals immediately should review the classifications of all independent contractors, analyze these employees under the appropriate legal standard, and ensure they have supporting documentation for their classification. Employers who use staffing agencies also should review those contracts to ensure they are comfortable with the level of protection and liability they will assume in the event of a wage and hour or other employment-related violation.

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The Authors

Kerri A. Wright Principal and Editor-In-Chief 973.889.4327 kawright@pbnlaw.com

David L. Disler Associate 973.889.4133

Matthew J. Donohue Associate 973.889.4212

dldisler@pbnlaw.com

mjdonohue@pbnlaw.com

Vito A. Gagliardi, Jr. Principal 973.889.4151 vagagliardi@pbnlaw.com

Melanie D. Lipomanis Associate 973.889.4287 mdlipomanis@pbnlaw.com

Patricia M. Prezioso Principal 973.889.4338 pmprezioso@pbnlaw.com

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Janelle Edwards-Stewart Counsel 973.889.4092 jedwardsstewart@pbnlaw.com

Marie-Laurence Fabian Of Counsel 973.889.4325 mlfabian@pbnlaw.com

Kathryn K. Forman Associate 973.889.4046 kkforman@pbnlaw.com

Thomas J. Reilly Associate 973.889.4283 tjreilly@pbnlaw.com

Eliyahu S. Scheiman Principal 973.889.4232 esscheiman@pbnlaw.com

David M. Schloss Of Counsel 973.889.4046 dmschloss@pbnlaw.com

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