An issue facing employees right now is the technicalities related to returning to the workplace. For employees who are back at work, it is unsurprising that situations may arise where the employee is exposed to COVID-19, a family member has COVID-19 or they themselves may catch the virus whether at work or elsewhere. Now the issue becomes, what does the employer do for the 14 days or so that their employee is mandated to stay home? The short answer is that an employer cannot simply fire an employee who has to be out of work due to having to quarantine.

New Jersey Law prohibits COVID-19 related employment discrimination. Under Executive Order 103, Governor Murphy specified that an employer cannot terminate or refuse to reinstate an employee who has or is likely to have an infectious disease that requires the employee to miss work. The employee is also protected from retaliation or penalty for requesting time off for having to quarantine.

In New York, Governor Cuomo enacted the COVID-19 Quarantine Leave Law, the COVID-19 Paid Sick Leave Law and expanded New York’s Paid Family Leave Law (PFL) and Disability Benefit Law. These laws require New York employers to provide job-protected sick leave to employees who are subject to a mandatory or precautionary order of quarantine.

Further, the Families First Coronavirus Response Act (FFCRA) is a federal law that went into effect on April 2, 2020 which provides extended coverage for employees who need to take leave because of COVID-19 by amending the Family and Medical Leave Act of 1993 (FMLA). The Emergency Family and Medical Leave Expansion Act expands coverage to most employees who have to quarantine.

What if my employer violates one of the above provisions?

If your employer fires you for having to quarantine due to COVID-19, there are a few courses of action you can take:

In New Jersey, you have the option to file a claim with the New Jersey Department of Labor and Workforce Development, where they will conduct an investigation and then determine if you should be reinstated to your position and if your employer should be penalized. Alternatively, you could file a lawsuit in the New Jersey Superior Court. Claims filed with the Department of Labor and Workforce Development will be processed in the same manner as claims for wages filed with the Division of Wage and Hour Compliance. There will be a hearing conducted by a Wage Collection Referee and the employer and other witnesses may be required to provide a testimony. The Wage Collection Referee can issue a decision and provide remedies. If the results of the investigation find that the employer acted in violation of any of the COVID-19 laws, the employee may be reinstated, and the employer faces a monetary administrative penalty.

In New York, you may file a claim with the New York State Department of Labor who will conduct an investigation.

Under the FFCRA, Employers in violation of the provisions are subject to the enforcement provisions as well as penalties under the Emergency Family and Medical Leave Act. The employer can be liable for compensatory damages (back pay, lost benefits, front pay, and emotional distress) as well as liquidated damages (double damages), attorneys’ fees and expenses, pre- and post-judgment interest, injunctive relief, and reinstatement.

Lastly, throughout the pandemic, many employers have improved their remote work systems and have allowed their employees to work from home if need be. It is important to familiarize yourself with your employers work from home policy just in case you find yourself in a situation where you must quarantine.

The federal Americans with Disabilities Act (ADA) provides employees and job applicants protection against employment discrimination who: (1) have a disability; (2) have a record of a disability; or (3) are regarded as having a disability.

The Third Circuit recently revived a truck driver’s ADA suit alleging Patrick Industries fired him for taking medical leave to recover from a lung biopsy procedure, saying a lower court fumbled its analysis of whether he was “regarded as” disabled under anti-discrimination law.

William Eshleman took two months of medical leave for a lung biopsy procedure and, six weeks after his return, took two vacation days for an upper respiratory infection. Following the second return, the employer fired him and offered shifting reasons for his termination.

Eshleman sued, alleging the company regarded him as an individual with a disability and fired him on that basis. A federal district court dismissed his claim, finding that his impairment was not eligible for coverage under the law’s “regarded as” prong because it was “transitory and minor.”

On appeal, a three-member panel said the district court improperly dismissed the suit because it only evaluated the “transitory” nature of his surgery to remove a nodule from his lung, but didn’t separately consider whether it was “minor,” as required. Minor means “objectively non-serious.”

Courts must evaluate whether an impairment is expected to last fewer than six months and analyze if it was minor in order to determine an employee’s ability to meet the “regarded as” element of the definition of disability under the ADA.

“While the statute is silent on the meaning of ‘minor,’ the ADA regulations clearly state that an employer must establish that the perceived impairment is objectively both transitory and minor,” Circuit Judge Theodore McKee wrote for the panel, adding that “‘transitory’ is just one part of the two prong ‘transitory and minor’ exception.”

This new Eshleman decision will pave way for the expansion of ADA suits in the Third Circuit.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

In a highly anticipated decision, the U.S. Supreme Court has declared that Title VII of the Civil Rights Act, which is the federal law that bans certain forms of employment discrimination, applies to LGBT workers. In New Jersey and New York, LGBT workers have been protected by state laws against discrimination for many years. This latest development, however, may give certain worker important additional options.

The Supreme Court case was actually a consolidation of three cases from the lower courts. In one, a county government employee in Georgia was fired shortly after he joined a softball league for gay men. In a second, a skydiving instructor in New York was fired shortly after his employer discovered he was gay. In Michigan, a funeral home fired a trans woman who after six years on the job announced her intention to begin, as part of her transition, dressing in accordance with the employer’s rules for female attire.

All of these situations, according to the court, represented impermissible forms of sex discrimination under Title VII. The majority opinion stated that an “employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision exactly what Title VII forbids.”

The U.S. Supreme Court held that the ban on sex discrimination in the federal employment law, Title VII of the Civil Rights Act of 1964, covers employment discrimination based on sexual orientation or transgender identity.

The Court’s decision will have significant consequences in the majority of states, which do not include anti-LGBT discrimination protections as part of their state-level employment discrimination laws.

For employers in New Jersey and New York, the Supreme Court’s decision may not have much practical effect as the New Jersey Law Against Discrimination (NJLAD) and New York State Human Rights Law already prohibit employment discrimination based on sexual orientation and gender identity. The decision may, however, shift some litigation from state to federal courts.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

In response to the COVID-19 pandemic, many employees sought time off work under the paid sick leave or paid family and medical leave provisions of the Family First Coronavirus Response Act (FFCRA) to care for children at home because their schools or day care centers closed. As the end of the school year approached, many summer schools or camps cancelled programming. Others remain in limbo, awaiting governmental clearance and guidance to resume operations during the phased “re-opening” of the economy. All of this leaves parents and their employers questioning whether FFCRA provides leave when parents need to care for children at home because of closed summer camps or educational programs.

On June 26, 2020, the U.S. Department of Labor (DOL) issued guidance stating that FFCRA leave is available when a parent is unable to work or telework because a “place of care” is closed due to COVID-19-related reasons. The guidance further notes “place of care” means “a physical location in which care is provided” for a child, and this “includes summer camps and summer enrichment programs.”

Criteria for Coverage

Coverage exists where children were enrolled before a program closed. Recognizing that the uncertainties surrounding the pandemic resulted in camps or programs not taking enrollments, the guidance states coverage exists when a child attended a closed program in prior summers and was eligible to again participate this summer while also noting “there may be other circumstances that show an employee’s child’s enrollment or planned enrollment in a camp or program.”

The guidance provides that a parent’s mere interest in a camp is not enough; it must be “more likely than not” the child would have participated in the underlying program. Evidence of planned participation cited in the guidance includes eligibility for participation, submissions of applications or payments of deposits toward such programs; however, the guidance makes clear there is no “one-size-fits-all” rule.

The guidance also clarifies the type of information parents must provide employers to support such leave requests:

An employer who improperly denies such leave could be subject to a DOL enforcement action or even a private suit.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

On April 12, 2020, New York State became the largest jurisdiction to impose face-covering requirements in response to the ongoing COVID-19 pandemic. Governor Andrew Cuomo issued an executive order requiring “all essential businesses or entities” to provide “any employees who are present in the workplace” with face coverings to wear “when in direct contact with customers or members of the public,” and specifying that businesses “must provide” such face coverings “at their expense.”

New York thus joined New Jersey, the District of Columbia and numerous other localities in requiring or recommending the use of masks or other face coverings in the workplace and elsewhere in public.

The following are answers to some of the most common questions in this area:

What is a “mask,” and what is a “face covering”?

A mask is usually defined in workspaces as either (i) a filtering respirator such as an N95 or K95 or (ii) a specialized medical grade or surgical mask. In contrast, a face covering is a cloth, bandana, or other type of material that covers an employee’s mouth and nose.

Other types of improvised coverings, such as a scarf or single cloth layer would not be adequate under most orders mandating face covering

Who pays for masks/face coverings?

New York specifically requires employers to provide employees in essential, customer-facing roles with face coverings at the employer’s expense. Similarly, New Jersey requires restaurants, dining establishments and other food service businesses, as well as various public employers, to provide their employees with face coverings and gloves at the business’s expense.

Who does the cleaning and maintenance, and who pays for it?

As the CDC states, multiple-use face coverings should “be able to be laundered and machine dried without damage or change to shape,” generally at least once a day or more often if contamination occurs. Regardless of whether face coverings are governmentally mandated, required by employer policy, or merely recommended, proper cleaning and maintenance are critical to ensure that employees do not reuse dirty or contaminated face coverings, which pose a hazard to other employees as well as customers.

In principle, responsibility for cleaning expenses could vary based on state uniform maintenance rules. For example, under New York State’s Minimum Wage Orders, most employers have the option to either launder uniforms or to pay the employee a set premium to cover cleaning expenses.

What if an employee declines to wear a face covering for medical reasons?

Generally, employers should be providing training to employees at the time that face coverings are distributed or implemented, and the training process should include identification of any medical issues that could interfere with wearing face coverings, such as claustrophobia, asthma, COPD or other conditions. Employers are advised to engage in the interactive process with such employees as required by the Americans with Disabilities Act (ADA) and similar state and local provisions. An employee who cannot breathe through a face covering should not be required to wear one, but may need to be temporarily removed from customer-facing responsibilities, provided with leave or accommodated in some other fashion.

What if an employee declines to wear a face covering for non-medical reasons?

Employee objections should be evaluated in light of all of the relevant circumstances. For example, an employee may raise objections based on religious grounds, where their pre-existing grooming or dress requirements conflict or interfere with prescribed face coverings. In such cases, the employer should engage in the interactive process as required by Title VII and similar state and local provisions.

Individuals who simply decline to wear face coverings, but do not raise a medical or otherwise protected objection, should not be permitted to work and may be disciplined for not following work requirements.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

While being fired, laid off or experiencing an adverse change to your job during this unprecedented time by itself does not necessarily give you a legal claim, you still have legal rights.

For example, it is unlawful discrimination for your employer to choose to fire or furlough you for an unlawful reason, such as because of your age, race, disability, gender, sexual orientation, pregnancy, religion, national origin, color, marital status, veteran status, or your membership in another legally-protected category.

Similarly, in New Jersey, employers still cannot select you to be fired or have your hours reduced because you objected to, disclosed, or refused to participate in an activity that you reasonably believed violated the law or a clear mandate of public policy. That includes, for instance, prohibiting your employer from choosing to fire you because you objected to a policy or practice that you reasonably believe violates a new law, order, or other state, federal or local requirement relating to COVID-19.

Likewise, employers still must comply with other laws, such as the Family & Medical Leave Act (“FMLA”), the New Jersey Family Leave Act (“NJFLA”), the Worker Adjustment and Retraining Notification (“WARN Act”), the Fair Labor Standards Act (“FLSA”), the Wage Payment Act and the New Jersey the Wage & Hour Law.

New Jersey Attorney General Gurbir S. Grewal and the Division on Civil Rights issued guidance expressly stating that the Law Against Discrimination extends to situations involving COVID-19 in the workplace. The guidance emphasized that employers cannot terminate an individual’s employment based upon a positive diagnosis of COVID-19 or the employer’s perception that the employee may have COVID-19.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

On April 3, 2020, New York Governor Andrew Cuomo signed into law the fiscal year 2021 New York State budget, which includes a new statewide paid sick leave requirement. The new leave provisions will require New York employers of all sizes to provide a certain amount of paid or unpaid sick leave to be used for certain medical and employee safety-related reasons.

The paid sick leave requirements will take effect on September 30, 2020. However, employees may be restricted from utilizing accrued sick leave until January 1, 2021.

Amount of Sick Leave Available

Under the new sick leave provisions:

• Employers with 4 or fewer employees and a net income of less than $1 million in the prior tax year must provide employees with up to 40 hours of unpaid sick leave.
• Employers with between 5 and 99 employees and employers with 4 or fewer employees and a net income of greater than $1 million in the prior tax year must provide each employee with up to 40 hours of paid sick leave per year.
• Employers with 100 or more employees will provide up to 56 hours of paid sick leave per year.

Employees must accrue sick leave at a rate of at least 1 hour for every 30 hours worked. Alternatively, employers may fulfill their obligation under the law by providing the full amount of sick leave in a lump sum at the beginning of each year.

Unused sick leave carries over to the following year, though employers with fewer than 100 employees may limit the use of sick leave to 40 hours per year and employers with 100 or more employees may limit the use of sick leave to 56 hours per year.

Covered Reasons for Taking Leave

Covered reasons for taking sick leave under the law include:

• The need for diagnosis, care, or treatment of a mental or physical illness or preventative care of the employee or the employee’s family member; and
• Certain needs related to the employee or the employee’s family member being the victim of domestic violence, sexual offenses, stalking, or human trafficking, including obtaining services from a domestic violence shelter, rape crisis center, or other services program; participating in safety planning; temporarily or permanently relocating; meeting with an attorney or participating in legal proceedings; enrolling children in a new school; or taking other actions to increase the safety of the employee or employee’s family members

For purposes of this leave, a “family member” includes an employee’s child (including foster child, legal ward, or equivalent legal relationship), spouse, domestic partner, parent (including a step- or foster parent, legal guardian, or equivalent legal relationship), sibling, grandchild, grandparent, and the child or parent of an employee’s spouse or domestic partner.

Use of Sick Leave

The law does provide certain restrictions on the use of sick leave. Specifically:

• Employers may set a reasonable minimum daily increment for the use of sick leave of no greater than four (4) hours; and
• Unused sick leave need not be paid out upon an employee’s separation or termination of employment.

Notably, upon return from sick leave, the law requires employees to be restored to the same position as held before the leave with the same pay and terms and conditions.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

A. May an employer send home an employee involuntarily who has or is exhibiting symptoms of COVID-19?

Yes. In response to the current COVID-19 outbreak, the Equal Employment Opportunity Commission has cited its 2009 pandemic H1N1 flu guidance, which states that advising workers with symptoms to go home either (a) is not a disability-related action if the illness is akin to seasonal influenza or (b) is permitted under the Americans with Disabilities Act (ADA) if the illness is serious enough to pose a direct threat to the employee or coworkers.

Further, the Centers for Disease Control and Prevention’s (CDC)’s Interim Guidance for Business and Employers advises that employees with symptoms of acute respiratory illness and a fever (greater than 100.4 degrees Fahrenheit) should stay home. Of course, employers should apply this type of policy uniformly and in a manner that does not discriminate based on any protected characteristic (e.g., national origin, gender, race, etc.).

B. May an employer require a return-to-work doctor’s note for an employee to return to work after exhibiting COVID-19 symptoms?

A doctor’s note should not be a prerequisite for returning to work, according to the CDC. This is in part because this requirement would place a high burden on the already burdened healthcare system. If an employee’s situation meets the ADA’s “direct threat” standards, however, an employer may require a return-to-work doctor’s note.

C. May an employee refuse to come to work due to a fear of becoming infected with COVID-19?

Potentially. Employees may be protected from retaliation under the Occupational Safety and Health Act (OSHA) in certain circumstances when they refuse to perform work as directed. Specifically, an employee may refuse an assignment that involves “a risk of death or serious physical harm” if all of the following conditions apply: (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected the hazard through regular enforcement channels, such as requesting an OSHA inspection.”

D. May an employer refuse an employee’s request to wear self-provided respiratory protection and/or gloves?

Yes, if such measures are not otherwise required by the CDC’s guidance or OSHA’s standards, or if the employer determines that the employee’s use of respiratory protection or gloves in and of themselves presents a hazard to the employee (e.g., if they interfere with the employee’s ability to work safely).

The CDC and U.S. Surgeon General state that respirators are not required and are not protective for the general public working in non-healthcare settings. Given that, employers in non-healthcare settings with no infected employees have no need to require respirators.

E. Are there any OSHA requirements that must be followed when an employee is diagnosed with COVID-19?

Yes, in some cases. First, employers must ensure that the infected employee stays away from the workplace. OSHA may cite an employer under the general duty clause if the employer allows or directs a known infected employee to come to work and expose other employees to the risk of infection.

If an employee in the workplace is suspected of having COVID-19 (i.e., someone displaying symptoms of COVID-19), that employee must be quarantined immediately.
Second, employers are required under OSHA’s recordkeeping regulation to record illnesses that are “work related” and meet one of the recording criteria, which include days away from work, job transfer, and medical treatment.

OSHA’s recordkeeping regulation exempts the “common cold and flu” from the recordkeeping requirements. COVID-19, however, is not a common cold or flu. OSHA’s current guidance states that “COVID-19 is a recordable illness when a worker is infected on the job.”

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

As society continues to traverse the unchartered waters created by the COVID-19 outbreak across the country, federal and state laws have endorsed more protection for employees in these unprecedented times.

At the federal level, employees should be aware that the Company may not retaliate against them, based on the recently enacted Families First Coronavirus Response Act (“FFCRA”). The FFCRA provides certain benefits to eligible employees of covered employers, including requiring paid sick leave under certain scenarios for employees impacted by COVID-19, as well as expanded/enhanced FMLA benefits related to COVID-19 that apply to employers and employees not previously covered by FMLA.

In addition, an employer may not discharge, discipline, or otherwise discriminate or retaliate in any manner against an employee who takes paid sick leave or expanded FMLA leave under the FFCRA, files a complaint or institutes a proceeding under or related to the FFCRA.

Similarly, employees are provided further protection under recently enacted New Jersey state law. On March 20, 2020, New Jersey Governor Phil Murphy signed into law new anti-retaliation legislation with respect to the novel coronavirus, which prohibits employers from discharging, demoting, or otherwise penalizing an employee for requesting or taking time off, based on the recommendation of a licensed medical professional, because he or she has, or is likely to have, COVID-19.

The law also includes a job restoration clause that ensures the employee will be reinstated to the position he or she held when the leave commenced, with no reduction in seniority, status, benefits, pay, or other terms or conditions of employment.

Beyond those specific anti-retaliation proscriptions written into law as a result of the coronavirus pandemic, employees are protected by additional pre-COVID-19 laws application that may be implicated by this crisis, including but not limited to state “whistleblower” protection statutes such as New Jersey’s Conscientious Employee Protection Act (“CEPA”). The act prohibits all public and private employers in New Jersey from retaliating against any employee because that employee has engaged in certain protected activities set forth in the statute.

One significant way in which CEPA may be triggered is if an employer discharges or takes other adverse employment action against an employee who has complained about, objected to, or disclosed (or threatened to disclose) an employer’s practices or activities that the employee reasonably and in good faith believes violate the stringent limitations and restrictions imposed by way of Governor Philip Murphy’s executive order(s), including Executive Order 107, issued on March 21, 2020. Governor Murphy has expressly encouraged and invited employees (and others) to report potential violations of Executive Order 107 to the State’s attention by filing a complaint through the State’s website.

Executive Order 107 requires that all businesses that remain open and operating must “accommodate their workforce, wherever practicable, for telework or work-from-home arrangements,” and further provides that “[t]o the extent a business . . . has employees that cannot perform their functions via telework or work-from-home arrangements, the business . . . should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.”

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.