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Employment Law Notebook

MARCH MADNESS: WEEKLY UPDATE ON NEW FEDERAL, NJ EMPLOYMENT LAWS RELATED TO CORONAVIRUS

Due to the Coronavirus (COVID-19), the Governor of New Jersey, New Jersey state legislature and the federal government have kept us employment lawyers on our toes this week as new laws affecting employers and employees have been rolled out daily and sometime multiple times a day.  It has been a whirlwind, exhausting week, following and reporting on the changes, packing up my office to work from home, trying to keep my clients calm and informed and practicing social distancing.  Here’s what changed for employers and employees in New Jersey this week:

  • NEW NJ LAW RESTRICTS RETALIATION FOR THOSE WHO TAKE TIME OFF DUE TO INFECTIOUS DISEASE;
  • NEW JERSEY DIVISION ON CIVIL RIGHTS ISSUES GUIDANCE ON DISCRIMINATION ISSUES DUE TO COVID-19;
  • POTENTIAL NJ FINANCIAL ASSISTANCE TO BUSINESSES/EMPLOYERS SET IN MOTION:
  • PRESIDENT SIGNS FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA); and
  • CHANGE IN 1-9 REQUIREMENTS: MORE FLEXIBILITY IN HOW TO GATHER/CHECK DOCUMENTS.

 NEW JERSEY

MARCH 22 GOVERNOR SIGNED STAY AT HOME EXECUTIVE ORDER 107

Executive Order No. 107, https://nj.gov/infobank/eo/056murphy/pdf/EO-107.pdf went into effect 9 pm on March 22.  Some Key Parts of the Order are:

1. Businesses are required to accommodate employees “wherever practicable, for telework for work-from-home arrangements”. Telework or work from home is defined to mean working from home or an alternative location closer to home by using technology to access necessary materials.

  • A business or non-profit with employees that can’t perform their functions via telework or work-from-home arrangements, “should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.” Examples of employees who need to be physically present at their work site in order to perform their duties include, but are not limited to, cashiers, store clerks, construction workers, utility workers, repair workers, warehouse workers, lab researchers, information technology maintenance workers, janitorial and custodial staff, certain administrative staff. law enforcement officers, fire fighters, and other first responders.
  • For employers travelling to and from their jobs, businesses are encouraged to give each employee a letter indicating that the employee works in an industry permitted to continue operations

2. The brick-and-mortar premises of all non-essential retail businesses must close to the public. Examples of essential retail businesses are grocery stores, farmer’s markets and other food stores, healthcare facilities (and the ancilliary stores within them); pharmacies, alternative treatment centers that  dispense medical marijuana, medical supply stores, gas stations (and their retail functions), convenience stores, hardware stores, banks and other financial institutions, laundromats and dry-cleaning, pet stores, supply stores for children, liquor stores, car repair businesses (including that part of a car dealer’s services), retail printing and office supply, and retail functions of mail and delivery stores. If the business is open to the public, social distancing practices must be adopted and the business must provide pick up services outside or adjacent to the stores for goods ordered in advance online or by phone.

 3. All state residents are to remain at home or their place of residence except for these purposes:  reporting to, or performing their job; obtaining goods/services from essential retail businesses; getting take out foot/beverages from restaurants/other dining establishments; seeking medical attention, essential social services, or assistance from law enforcement/emergency services; visiting family or others with whom they have close relationship; walking, running, operating a wheelchair or engaging in outdoor activities with immediate family members/caretakers/household  members while following social distancing with others (six feet apart); leaving for an educational, religious or political reason; leaving due to reasonable fear for health or safety; leaving at the direction of law enforcement or other government agency.

 4. All social gatherings are prohibited and when in public, individuals must practice social distancing and stay six feet apart “wherever practicable”.

 5. Public transportation should only be used if employees “have no other feasible choice”

 6. Preschools and Schools must remain closed to students. Universities cannot provide in-person instruction. All limitations that were put in place on restaurants and other dining establishments remain in effect. All libraries, recreational and entertainment businesses, places of public amusement and facilities where person care services are performed must close to the public.

 7. Nothing in the Order is to be construed to limit, prohibit, or restrict in any way the provision of health care or medical services to members of the public or the operations of the media.

 8. Penalties for violating this order include jail time up to six months and a $1000 fine or both.

NJ LAW RESTRICTS RETALIATION AGAINST THOSE WHO TAKE TIME OFF DUE TO INFECTIOUS DISEASE: 

The law provides that during the Coronavirus pandemic, employers are prohibited from terminating, refusing to reinstate, or taking other adverse action against an employee who requests or takes time off from work based on the written or electronically transmitted recommendation of a medical professional that the employee take the time off because the employee has, or is likely to have, an infectious disease, which may infect others at the employee’s workplace. This law amends the wage and hour laws and provides new protection for employees but the New Jersey Law Against Discrimination also prohibits this conduct.

After the leave is no longer needed, the employer must reinstate the employee in the same position held before the leave commenced with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment.  If the employer refuses to reinstate, the employee can seek relief from a court or the NJDOL, which will order that the employee be reinstated and that the employer be fined $2500.

This law does not require that the time off be paid, however mandatory compensation for such leave would be covered by the NJ Earned Sick Leave Law, which requires employers to provide up to 40 hours a year of paid sick time and new paid sick leave under the federal Families First Coronavirus Response Act, which goes into effect April 2, 2020. See below.

NEW JERSEY DIVISION ON CIVIL RIGHTS ISSUES GUIDANCE ON DISCRIMINATION ISSUES DUE TO COVID-19.

 On March 19, 2020, The New Jersey Division on Civil Rights issued new guidance reminding employers that the NJLAD protects employees from discriminatory conduct that may be occurring due to Covid-19.  See https://www.nj.gov/oag/newsreleases20/202020318-NJ_DCR_FAQs_on_COVID-19_Final.pdf

 The New Jersey Law Against Discrimination (“LAD”) prohibits discrimination and harassment based on actual or perceived race, religion, national origin, gender, sexual orientation, gender identity or expression, disability, and other protected characteristics.  LAD also prohibits harassment based on a protected characteristic.   The Guidance emphasizes that these protections apply if the conduct stems from concerns related to COVID-19.  Some examples given include: An employer cannot fire an employee because he coughed at work and management perceived him to have a disability related to COVID-19 or because he has tested positive for COVID-19.  If an employee harasses another employee by claiming that Asian people caused COVID-19 or calling this “the Chinese virus”, the employer must take reasonable action to stop the harassment. The Guidance also provides information regarding how the New Jersey Family Leave Act protects employees who need to take time off of work to care for sick family members.

 POTENTIAL NJ FINANCIAL ASSISTANCE TO BUSINESSES/EMPLOYERS:

The Governor declared a state of public emergency on March 9. On March 20, the Governor signed A3845, which authorizes the New Jersey Economic Development Authority to make grants during this emergency and for the duration of economic disruptions due to the emergency, by providing financial assistance to businesses. For example, the law gives the EDA power to provide credit, loans and grants for the planning, designing, acquiring, constructing, reconstructing, improving, equipping, and furnishing of projects, and grants for working capital and meeting payroll requirements.  However, information has not yet been provided regarding how such funds can be acquired or will be allocated.

FEDERAL

FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA)

This new law requires employers with less than 500 employees to provide employees with paid Public Health Emergency Leave and paid Sick leave.  This is in addition to the New Jersey Earned Sick Leave Benefits and PTO the employer already provides. The President signed the law March 18 and it is expected to go into effect April 2, 2020 through Dec 31, 2020.

 1. Emergency Family And Medical Leave Expansion Act/Public Health Emergency Leave (part of FFCRA). 

What it does: This amends the Family and Medical Leave Act (“FMLA”) by providing 12 weeks of leave for eligible employees “because of a qualifying need related to a public health emergency”, which means the employee is unable to work or telework because the employee needs to care for a child of the employee under age 18 whose school or place of care has closed or whose child care provider is unavailable  due to a public health emergency. Public health emergency means “emergency with respect to COVID-19 declared by a federal, state or local authority”

Who is eligible: Employees employed at employers with less than 500 employees for at least 30 days prior to leave being requested who take leave due to a qualifying need related to a public health emergency.  The employer has to have had less than 500 employees for each working day of 20 or more calendar weeks in the current or prior calendar year.  This is a different standard for employers than the 50-employee standard applicable to the rest of the FMLA.

Compensation during leave:

The first two weeks of leave are unpaid but if the employee wants (their choice) they can use their own accrued PTO or sick time for this or the paid sick leave available under this law for it (See below).  Starting on the third week of leave, covered employers must pay the employee for the rest of their leave for at least 2/3 of their regular rate of pay (based on the number of hours the employee would normally otherwise be scheduled to work) up to a maximum of $200 per day and $10,000 entirely.  But see section on Tax credits for reimbursement to employers below.

Exception:

1) The US Department of Labor (“DOL”) has authority to issue regulations to 1) exempt small businesses with fewer than 50 employees from providing this leave if doing so “jeopardize the viability of the business as a going concern” and 2) exclude employees who are health care providers and emergency responders from being eligible for this leave.  The DOL promises to give clear and simple rules on this exemption but has not yet done so.

 2) An employer who is a health care provider or emergency responder can decide not to provide this leave.

Reinstatement after leave: All employees taking Public health emergency leave must be reinstated in the job they had prior to their leave or to an “equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment”

Small Business Exception:·If an employee taking public health emergency leave works for an employer that employs less than 25 employees, the employee is not entitled to job restoration if all of these are met:

 1) The position no longer exists due to economic conditions/other changes in the employer’s operating condition caused by the public health emergency during the leave; and

 2) The employer “makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay and other terms of employment”; and

 3) If such reasonable efforts are not successful and the employer “makes reasonable efforts to contact the employee if an equivalent position becomes available’ for one year after either a) the need for the employee’s leave ends or b) a date that is 12 weeks after the leave starts).

Employers with under 50 employees will not be subject to civil suits by employees for violating the COVID-19 FMLA leave requirements. 

No retaliation:  Employers are prohibited from interfering, with restraining or denying the employee’s right to leave and from discharging or discriminating against an employee for complaining that the employer violated this part of the FMLA.

 2.     Emergency Paid Sick Leave Act (part of FFCRA):  

What it does provide:  This is the first time the federal government has implemented a paid sick leave law. Covered employers must provide paid sick time for employees who can’t work or telework due to any of these circumstances:

1) Local, state or federal quarantine or isolation order related to COVID-19 that is precluding employee from working;

  • CDC defines isolation as something that “separates sick people with a quarantinable communicable disease from people who are not sick” and quarantine “as something that separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick.”  The FFCRA does not define quarantine or isolation order so it is unclear if that definition applies here.  The DOL will likely issue guidance before April 2.

2) “Employee has been advised by a health care provider to self-quarantine due to concern related to COVID-19”;

3) “Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis”;

4)  Employee is caring for an individual who is subject to local, state or federal quarantine or isolation order related to COVID-19 or been advised by a health care provider to self-quarantine due to concern related to COVID-19;

5) Employee is caring for a child (no age limit) of the employee if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions; or

6) Employee is experiencing any other substantially similar condition specified by the Secretary of Health And Human Services.

Who is eligible: Employees employed at employers with less than 500 employees or a public agency of any size. There is no required length of service with employer.

Exceptions:

Possible Small Business Exemption: USDOL has authority to issue regulations to exempt small businesses with fewer than 50 employees from providing this leave if doing so “jeapordize the viability of the business as a going concern” DOL has yet to clarify this standard.

Employers of health care providers and emergency responders can choose to exclude these workers from this benefit.

How much Paid Sick time and at what rate: 80 hours for full time employees. Part time employees receive paid time off based on the total hours they normally work in a 2-week period. This is paid at the employee’s normal rate of pay or the state minimum wage, (whichever is greater ) up to a maximum of $511 per day and $5110 in the aggregate per employee for use for employee’s own medical/quarantine/isolation issues and up to $200 per day and $2000 in the aggregate for the employee who is caring for  others as indicated in the law. But see section on Tax credits for reimbursement to employers below.

 No retaliation:  It is unlawful to discharge or take other adverse action against an employee who takes this Paid Sick Leave or files a complaint or caused a complaint to be filed to enforce the Act, or has testified in such a proceeding.

 Relationship with NJ Earned Sick Leave:

The law provides that this part of the (FFCRA) cannot be used to diminish the rights or benefits that an employee has under any other federal, state or local law, collective bargaining agreement or existing employer policy.  Until guidance is issued by the state of New Jersey and federal government, the best course is for employers to provide the paid sick leave (80 hours for full time employees) required under (FFCRA) plus the 40 hours of paid sick leave benefit required under the New Jersey Earned Sick Leave Act (or any other state's law).

Employers that rolled the NJ Earned Sick Leave Act entitlement into a general PTO policy therefore would have to provide the PTO plus the new paid sick leave entitlement under this new federal law.  It is important to note, however that employees can use New Jersey Earned Sick Leave Act law benefits for more reasons than allowed the FFCRA, accrue it and do not have their benefits capped.

Possible Small Business Exemption: USDOL has authority to issue regulations to 1) exempt small businesses with fewer than 50 employees from providing this leave if doing so “jeapordize the viability of the business as a going concern” DOL has yet to clarify this standard.

Violations of the Act: will be treated as a violation of the Fair Labor Standards Act, the federal wage and hour law.

Don't Panic Employers: Tax Credits Will Be Available for Providing This Paid Leave

The Federal Government with provide employers with a 100 percent tax credit for the amount of paid sick leave and paid public emergency leave they provided to an employee.  For example, if an eligible employer paid $5,000 in sick leave and is otherwise required to pay the IRS $8,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $5,000 of the $8,000 of taxes it was going to pay the IRS for making qualified leave payments. The employer would only be required under the law to pay the IRS the remaining $3,000 on its next regular deposit date. See https://www.irs.gov/newsroom/treasury-irs-and-labor-announce-plan-to-implement-coronavirus-related-paid-leave-for-workers-and-tax-credits-for-small-and-midsize-businesses-to-swiftly-recover-the-cost-of-providing-coronavirus

Independent Contractors will also get a tax credit if they would have received sick leave or family leave if they were an employee.

Guidance coming: The DOL and IRS are expected to issue detailed guidance on the FFCRA soon.  In the interim the agencies have released this information. https://www.irs.gov/newsroom/treasury-irs-and-labor-announce-plan-to-implement-coronavirus-related-paid-leave-for-workers-and-tax-credits-for-small-and-midsize-businesses-to-swiftly-recover-the-cost-of-providing-coronavirus

 CHANGE IN 1-9 REQUIREMENTS: MORE FLEXIBILITY IN HOW TO GATHER/CHECK DOCUMENTS.

The Department of Homeland Security has come up with new procedures for employers to check an employee’s eligibility to work in the United States in light of the huge number of employees working at home. Read here for details. https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance

 

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