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Employee Disclosure of COVID-19 Vaccinations

With more and more businesses taking the first steps to reopen as the pandemic begins to wane, I have been getting this question from more and more of my clients: Can we ask our employees to provide proof that they have been vaccinated against COVID-19?  The answer is that an employer may indeed ask that question and make that inquiry, but employers must be careful regarding how far they probe into that question.

The Equal Employment Opportunity Commission (“EEOC”) has taken the position that asking someone whether they are fully vaccinated does not result in the disclosure of an employee’s medical information, so asking such a question is fair game for an employer. In the EEOC’s view, just asking the question is not a medical exam because there could be many reasons (other than, for example, employee health issues) that may be why an employee has not been vaccinated. Where you as an employer will need to be cautious is when you start asking questions beyond the vaccination proof issue, such as why the employee is not vaccinated.  There you might be treading too close to asking improper questions about an employee’s medical status. If you find yourself in that territory, you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act’s (ADA) (or Title VII’s, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.” That can be a difficult standard to meet, so employers who wish to venture into this area would be wise to (1) strictly limit their inquiry exclusively to whether or not the employee is fully vaccinated; and (2) requesting proof of that vaccination, say asking for a copy of the vaccination card itself. That way you avoid getting into these medical issue topics, and you the employer would then keep any proof information you obtained from the employee confidential like you would with any other private information received on an employee.

As things continue to evolve, we expect to receive more guidance from the EEOC on what employers can do as part of their reopening efforts, and as that happens, we will provide further legal updates to assist employers in those reopening efforts.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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New Jersey Issues Employer Vaccine Guidelines

With the increased availability of COVID-19 vaccines in New Jersey, the state Department of Health (“DOH”) recently issued Guidelines allowing employers to mandate COVID-19 vaccinations for its employees. Nonetheless, even in the face of such state Guidelines, employers should still proceed cautiously in implementing such vaccine mandates for employees given the mere emergency use authorization granted to the currently available COVID-19 vaccines under federal law.

In announcing its Guidelines allowing for mandatory vaccinations, the state DOH adopted in large part the Guidelines previously outlined by the Equal Employment Opportunity Commission (“EEOC”) regarding COVID-19 employer vaccination mandates. The state DOH also announced three exceptions to this vaccine mandate rule:

  1. The employee has a disability that would prevent them from getting the vaccine.
  2. The employee’s doctor advised them not to get the vaccine while pregnant or breastfeeding
  3. The employee has sincerely held religious beliefs, practices or observances that would prevent them from being inoculated.

If the employee can prove such exceptions, the employer must provide a reasonable accommodation, per the state DOH’s Guidelines. Moreover, on the other hand, employers can avoid providing an accommodation to an employee where doing so imposes an undue burden on the employer’s operations.

Some other important aspects of the state DOL Guidelines:

  1. Employers generally may request medical documentation to confirm a disability.
  2. Employers may request medical documentation to confirm that an employee who is pregnant or breastfeeding was advised by their doctor to seek such accommodation.
  3. Employers must ensure that all information about an employee’s disability is kept confidential.
  4. If a sincerely held religious belief, practice, or observance precludes an employee from getting a COVID-19 vaccine, however, an employer generally may not question the employee’s sincerity. The exception to this requirement is if the employer has an “objective basis” of fact for questioning either the religious nature or the sincerity of a particular belief, practice, or observance. In that case, the employer may make a limited inquiry into the facts and circumstances supporting the employee’s request.
  5. Safety also can be considered in evaluating whether a potential accommodation would be reasonable. In this regard, an employer must base its decisions regarding any potential safety hazard on objective, scientific evidence and not on unfounded assumptions or stereotypes.

Where an employer must provide a reasonable accommodation, such a measure may include:

  1. Allowing the employee to continue to work remotely, or otherwise to work in a manner that would reduce or eliminate the risk of harm to other employees or to the public.
  2. Providing the employee with personal protective equipment that sufficiently mitigates the employee’s risk of COVID-19 transmission and exposure.

Whether these Guidelines will result in an increased number of employer mandated vaccination programs is difficult to predict. So far, most employers have decided against mandating employee vaccinations because the vaccines have only been approved for emergency use and are not fully authorized and licensed vaccines.

Even with this New Jersey Guidelines directive, the Federal Food and Drug Law’s requirement that no one can be forced to take a vaccine that is only approved for emergency use still exists as a limitation and raises a possible legal risk for employers. Granted, its application in these situations raise novel issues. And, we do not have a definitive answer in the context of emergency use vaccines. Nevertheless, it presents enough of a concern that employers should proceed cautiously in mandating employee vaccines even with the recent state DOH Guidelines.

In that regard, here is one very real and significant legal risk for employers in New Jersey. Let’s say you as an employer want to mandate the vaccination, and one of your employees refuses to take it and they do not fall into one of the stated exceptions. Now, let’s also assume that you as the employer plan to take some type of adverse employment action against the employee-maybe you decide to fire them or put them on a forced unpaid leave of absence. That employee could potentially bring suit and claim that the refusal to get vaccinated constituted a form of whistleblowing and violates the New Jersey CEPA law, with the public policy cited to support the claim being the federal food and drug law. That is one risk that the employer faces in mandating COVID vaccinations when the vaccine is still authorized just for emergency use. This is an important reason why most employers have opted instead to recommend vaccination, with many also offering incentives to promote greater employee response. This later way of obtaining the wanted result of greater employee vaccinations in the workplace is the far safer approach to this issue rather than employer mandates.

No doubt, we can expect this situation on employee vaccinations to continue to evolve, and employers will likely receive further federal and state guidance on how best to proceed as the desire to return to some normalcy in the workplace continues to develop.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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LAD Arbitration Limitation Struck Down By Federal Court

In 2019, when the New Jersey Law Against Discrimination (“LAD”) was amended at the height of the “Me Too” movement, one change made was adding a provision that precluded an employer from requiring an employee to waive their right under the LAD to a jury trial.  Most employment law practitioners understood that this provision was designed to prevent employers from requiring that all work-related disputes be resolved through arbitration, which is expressly allowed under federal law, specifically the Federal Arbitration Act (“FAA”). The FAA requires enforcement of all such arbitration agreements, and expressly favors the use of arbitration to resolve legal disputes. It was expected that at some point this provision of the LAD would be struck down as unenforceable because no state law can conflict with the requirements of federal law, which is supreme under our constitutional system of government. That decision finally came down from a United States District Court judge here in New Jersey last week in N.J. Civil Justice Inst. v. Grewal, No. 19-17518, 2021 U.S. Dist. LEXIS 57437 (D.N.J. Mar. 25, 2021).

The U.S. Chamber of Commerce, the New Jersey Civil Justice Institute, and members of those groups such as Comcast Corp. and PricewaterhouseCoopers LLP all sued in New Jersey Federal Court to stop enforcement of Section 12.7 of the LAD that ostensibly was intended to protect the right of employees to have LAD claims heard by a jury. Arguing that this provision was a direct assault on arbitration rights protected under the FAA, the foregoing groups sought to preclude enforcement of Section 12.7.  Noting that similar provisions have already been struck down under California and New York law for violating the FAA, and was similarly invalidated by a lower New Jersey state court, the Federal Court here likewise concluded that Section 12.7 could not be enforced to the extent that it would prevent employers from utilizing arbitration agreements to resolve workplace disputes under the LAD.  In its decision, the Court specifically rejected an argument that Section 12.7 had no bearing on arbitration rights because no mention is made of arbitration anywhere in that section.  The Court ultimately rejected this argument, because Section 12.7 prohibits the waiver of the right to a jury trial, which is the “primary characteristic” of arbitration. Thus, the lack of any mention of arbitration did not preclude the Court’s ruling that enjoins further enforcement of Section 12.7.

With more and more employers utilizing arbitration agreements, this ruling is an important decision in reaffirming the right of employers to continue to use arbitration agreements, even in light of Section 12.7.  Now, it is clear that Section 12.7 does not pose any impediment to the continuation of the use of arbitration agreements relating to employee LAD claims, and for other similar types of work-related disputes.

While this seems to temporarily resolve the issue, there is a chance that the matter will be appealed. We will keep a close eye on the progress of the case.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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Legal Marijuana and New Jersey Employee Rights

On February 22, 2021, Governor Murphy finally signed three bills into law that effectively lay the ground work for legalized use of recreational marijuana in New Jersey.  While it could be some time before widespread legalized marijuana is available for purchase as the state establishes the needed infrastructure for the sale of the drug through state licensed dispensaries, I have fielded a number of questions already from employers regarding how far they must accommodate employee use of recreational marijuana. The reality is that employees will have wider protections under the new use law, and though those protections are not absolute, most employers now will have to come to grips with the new reality that marijuana use after work hours will no longer be grounds to automatically discipline an employee.

The new law expressly bars an employer from firing or refusing to hire a person who uses marijuana in their free time. Nonetheless, employers who have “reasonable suspicion” that a worker is “high” during work hours may still drug test such an employee and ultimately fire or discipline them if the test result is positive. Moreover, if you happen to be a Federal contractor who is subject to drug free workplace requirements, you will have more latitude even under this new legal scheme in imposing restrictions for recreational marijuana use since failing to prevent drug use in your workforce could place in jeopardy your continuing contractor status.

The law further specifically allows an employer to do random, regular or pre-employment screening, but in doing so, it must include a “scientifically reliable” test of blood, urine or saliva, paired with a physical evaluation to determine if the employee is currently impaired, as well as a physical examination by an employee who undergoes training to spot marijuana impairment. What that training will require for such employer observers will likely be crafted as part of the expected regulatory framework to be implemented by the state. So stay tuned for additional developments on this topic.

Finally, a frustrating reality with which employers will now need to grasp even more is that, when it comes to marijuana, there is no widely-used and accepted physical drug tests for marijuana that can detect real time intoxication absent proof of immediate drug use and impairment. Instead, the current test merely reveals the presence of marijuana in the body, which can linger sometimes days or weeks after a person last consumed the drug. This could further limit the circumstances where corrective actions can be taken against an employee for recreational marijuana use.

Accordingly, in light of the passage of this statutory framework that paves the way for legal marijuana use, employers need to start reviewing their drug testing policies and bring them into compliance with the new standards for testing for marijuana use. Furthermore, once training standards are established, employers will need to designate corporate observers and ensure that they receive the requisite training to detect marijuana impairment.  The sooner employers start to address such issues, the better it will be in dealing with this changed legal landscape involving recreational marijuana use.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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COVID-19 and the Holidays

With the holiday season now upon us, there are growing concerns about how the COVID-19 pandemic could worsen because of the expected social gathering activities associated with the holiday season, and how that could impact New Jersey workplaces. The Centers for Disease Control (“CDC”) has already issued directives that persons should not travel during the holiday season, and that they should likewise keep their gatherings small (ideally limited to their own households), and where possible, keep them outside to maintain good social distancing. In light of the CDC’s directive, I have gotten several questions from clients about what employers can do to ensure that their employees follow such directives and engage in safe behavior during the upcoming holidays. The answer to those questions will likely surprise you.

Believe it or not, even in a place like New Jersey which is very pro-employee, employers can actually demand that their employees refrain from travelling during the holiday season, and likewise minimize their social contacts and holiday gatherings, even when such conduct is happening outside of working hours. Why? Because of the public health crisis caused by COVID-19, employers have a right (and some would say a legal duty) to safeguard their workplaces, and in light of the CDC directive against holiday travel, employers can mandate no employee travel and likewise require that employee family and other related social gatherings also adhere to CDC recommendations. Employers have been given a great deal of latitude during this public health emergency in taking steps to protect the workplace, and requiring employees to adhere to the recent CDC directives fall within the scope of that discretionary authority.

So, in light of the above, are you telling me that as an employer, I could actually discipline or even fire an employee who fails to follow the CDC recommendations? My answer: absolutely.  Most employees in New Jersey are at will, meaning that an employee can be fired for any reason, or no reason at all, so long as it is not an illegal reason. There is no legal prohibition in New Jersey that would prevent an employer from firing or disciplining an employee who refuses to adhere to an employer directive that an employee not travel during the holidays and/or minimize their family gatherings in light of the concerns raised by the CDC. Some states like Colorado and California have laws that prevent employers from firing employees for doing lawfully allowable things outside of work hours, but New Jersey has no such law. Thus, if an employer wants to mandate that its employees follow what the CDC has mandated about travel and social gatherings during this holiday season, employers in New Jersey are free to impose such requirements, and may issue appropriate discipline if employees fail to follow such requirements.

So, employers here in New Jersey have one more tool to use in protecting the workplace while the COVID-19 pandemic continues to wreak havoc on day to day life.

I wish everyone a safe and happy holiday season.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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COVID-19 and New Disability Obligations

In this space, I have written a couple articles on the need for employers to be aware of accommodation obligations under federal and state disability laws for those employees who are high risk for either COVID-19 exposure or more serious health problems from COVID-19.  I want to focus today on a different aspect of the accommodation duty — the need to accommodate the possible long term health problems flowing from recovery from COVID-19 themselves.

For many persons who survive their bout with COVID-19, long term heath consequences could continue for some time after COVID-19 no longer provides a risk of death or contagion to others. Some have continuing respiratory problems. Others continue to be lethargic for weeks after receiving a negative COVID-19 test. Still others experience long and short term cognitive issues. While COVID-19 may have left their bodies, new health problems exist, and these medical issues themselves will likely create possible accommodation requirements for employers because those issues would most likely qualify as a legal disability.

Employers need to be cognizant of such accommodation duties, and should approach them in the same fashion as they would any other accommodation request for a particular health ailment. Remember to follow the guidance provided previously in past articles about the importance of the interactive process in exploring possible accommodations and gaining needed medical information from the employee to help shape that dialogue and craft a potential accommodation, or alternatively, a defense to that request if no accommodation could work for the employer. Failing to do so will no doubt generate unwanted legal headaches for the employer. Thus, employers should not ignore this new health phenomenon.

So, remember, even when COVID-19 itself seems to have been beaten by the employee, its possible long term exposure effects on an employee may remain and could require some form of workplace accommodation.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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A Refresher on Handling Reasonable Accommodations

In this current age of COVID-19, employers are seeing more and more requests from employees seeking a workplace reasonable accommodation. Some of these requests emanate from the employee’s own health condition that increases risks for COVID-19 complications. On the other hand, some employees are seeking to avoid coming into work because close family members have health conditions that make them more susceptible to COVID-19. So, how should employers respond to such requests?

As most employers know, possible accommodation duties flow from both federal and state anti-disability discrimination laws. For example, the Americans with Disabilities Act (“ADA”) requires that accommodations be made to assist a disabled employee in performing the essential functions of an employee’s job position. Here, in New Jersey, the state’s Law Against Discrimination (“LAD”) also imposes a similar duty.

In facing the accommodation requests of the kind referenced above, the first thing that I counsel employer clients to do is confirm that the employee indeed has a disability that may need to be accommodated. In today’s COVID-19 world, we are seeing more and more employees seeking an accommodation of working virtual from home because of concerns about vulnerable family members with whom they live. Since the employee is not asking for an accommodation for his/her own medical condition, neither the ADA nor the LAD requires that the employer accommodate the request. This does not mean that the employer cannot work with the employee to address such concerns-what it does mean is that legally the employee has no right to demand such an accommodation.

If the employee is conversely seeking an accommodation for his or her own medical condition, the employer is obligated to explore the possibility of an accommodation by engaging in the interactive process of examining possible ways of addressing the request.  This interactive back and forth includes the right on the employer’s part to obtain medical information to substantiate the request for accommodation. For employees who have a greater vulnerability of COVID-19 health risks, several of my clients are also seeing a higher volume of requests to work from home. Many of these clients are concerned about providing such an accommodation because it gives rise to possible burdens on staffing and the ability to provide services to clients.  As part of any analysis of such a request, my recommendation is always to scrutinize closely the medical reason for the request, and obtain detailed information from the medical provider about whether other non-work restrictions have been imposed. For example, has the doctor told the employee that he/she should not be leaving the home for any reasons or placed any similar type of stay at home restrictions on the employee. I also urge employers to alert the employee’s doctor to the steps taken in the workplace to protect employees from COVID-19 exposure so the physician can assess risks in light of the actual workplace to be encountered by the patient employee. Using such an exacting approach will better allow the employer to ferret out legitimate accommodation needs from those which arise from general fears of possible workplace COVID-19 exposure that ordinarily are not a sufficient legal reason for an accommodation.

The interactive process is a critical aspect of handling all workplace accommodation requests and should not be ignored because of the possible abuse of accommodation requests by employees fearing COVID-19 exposure. Even in situations where ultimately the employer may believe that it will cause an undue hardship to accommodate the employee, the interactive process must still be pursued before ultimately denying the accommodation request due to an undue hardship. In my experience, this is where employers get themselves into the most trouble. In this COVID-19 world, it is tempting to just ignore this step in the process and deny a suspicious accommodation request outright, but doing so is fraught with peril.

So, by following the foregoing steps, employers will better handle accommodation requests in the age of COVID-19 and minimize potential risks of liability claims hurting your business.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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Vaccines and the Workplace

Anyone watching the news today has seen report after report about a possible vaccine for the coronavirus and the speedy progress being made towards its development.  This vaccine is hoped by many to be the cure all to allow the world to go back to some semblance of the normalcy that existed before the commencement of the current pandemic. While all would seemingly acknowledge that an effective and reliable vaccine for COVID-19 would be wonderful news, the success of the vaccine in bringing back normalcy will largely depend upon how willing the general public will be in taking the vaccine. Which leads me to the question that I have already been asked by several of my clients: in an age of a pandemic, can employers force their employees to undergo a vaccine treatment as a condition of employment?

While the current pandemic is new, the above question is not. With the rise of the anti-vaccine movement, employers have actually had to grapple with this issue, especially those in the health care industry. In this regard, there are already several reported cases regarding whether hospitals and other health care providers can require employees to have flu and tuberculosis vaccines as a condition of continuing employment. Employees have been fired for not agreeing to be vaccinated, and a body of law has developed addressing this issue. Absent a compelling reason for refusing a vaccination, the case law holds predominantly that employers can indeed require vaccinations as a term and condition of employment, and employees without a valid religious or medical reason for rejecting a vaccination can indeed be fired. In the large majority of such cases, the courts have determined that the employer has a compelling interest in maintaining the safety of their workplace and the health of those whom they serve. Such legal principles would thus seemingly support the idea that, when a vaccine is discovered for COVID-19, an employer could mandate that employees receive such inoculations, subject to having to consider the possible exemptions previously noted. In an age of a pandemic, and a virus that has killed hundreds of thousands of victims worldwide, it is hard to fathom a more serious threat to public health and an employer’s workforce and its customers that could justify a required vaccine employer directive.

Moreover, in March 2020, the Equal Employment Opportunity Commission (“EEOC”) also issued COVID-19 guidance specifically addressing the issue of whether employers covered by the Americans With Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) can compel all employees to take the influenza vaccine (while noting that there was not yet a COVID-19 vaccine). In responding to this question, the EEOC stated that an employee could be entitled to an exemption from a mandatory vaccination under the ADA based on a disability that prevents the employee from taking the vaccine, which would be a reasonable accommodation that the employer would be required to grant unless it would result in undue hardship to the employer.  Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation. The EEOC made similar mention of a possible religious obligation exception under Title VII also absent the required showing of an undue hardship.

Finally, the Occupational Health and Safety Administration (“OSHA”) similarly has declared that employers may require employees to be inoculated against the flu, provided the employer provides to its employees an explanation of the benefits of the inoculation, and further allows for an exception for those employees who reasonably believe that they are at significant risk of serious medical complications from having the vaccination.

So, as we wait for a vaccine to become available, employers should begin thinking about what they will be demanding of their employees regarding the need to receive a vaccination when it begins to be widely distributed. Should employers require vaccinations of all employees, or only those employees who are most high risk for serious complications from COVID? If an employer opts for the latter, could that approach open the door to discrimination claims from those who are older or have disabilities who are at higher risk? And, how do you handle the expected requests for religious and medical accommodations, and can you avoid such duties by arguing that accommodation would impose an undue hardship by increasing the risk of possible COVID spread in your workforce?

Employers:  Begin your analysis of these issues now because if the reports in the news are indeed true of expedited success in creating a vaccine, you will need to address those issues much sooner than you presently think.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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Is the Government Travel Advisory an Enforceable Order?

As most of us know, the Governors of New Jersey, New York, and Connecticut have issued a “travel advisory” indicating that those who travel from certain states must quarantine for a period of 14-days after the last contact with those states. Is this “advisory” an enforceable order? Well, this topic is becoming one of the most complex of issues facing employers today during this pandemic.

The advisory is now effective and applies to all states that have a positive test rate higher than 10 per 100,000 residents or a state with a 10% or higher positivity rate over a seven-day rolling average. But, unlike the governors of New York and Connecticut, who issued executive orders announcing the restrictions, Governor Murphy of New Jersey has not. New Jersey issued a travel advisory instead. Hence, the question that forms the title of this article – is this travel advisory a state order that must be complied with in all due respects or is it a request from the state for persons to voluntarily engage in certain conduct?

The states that are currently on New Jersey’s travel advisory as of July 28, 2020 include the following:

  1. Alabama (added 6/24/20)
  2. Alaska (added 7/21/20)
  3. Arkansas (added 6/24/20)
  4. Arizona (added 6/24/20)
  5. California (added 6/30/20)
  6. Delaware (re-added 7/21/20)
  7. District of Columbia (added 7/28/20)
  8. Florida (added 6/24/20)
  9. Georgia (added 6/30/20)
  10. Iowa (added 6/30/20)
  11. Idaho (added 6/30/20)
  12. Illinois (added 7/28/20)
  13. Indiana (added 7/21/20)
  14. Kansas (added 7/7/20)
  15. Kentucky (added 7/28/20)
  16. Louisiana (added 6/30/20)
  17. Maryland (added 7/21/20)
  18. Minnesota (re-added 7/28/20)
  19. Mississippi (added 6/30/20)
  20. Missouri (added 7/21/20)
  21. Montana (added 7/21/20)
  22. Nebraska (added 7/21/20)
  23. Nevada (added 6/30/20)
  24. New Mexico (added 7/14/20)
  25. North Carolina (added 6/24/20)
  26. North Dakota (added 7/21/20)
  27. Ohio (added 7/14/20)
  28. Oklahoma (added 7/7/20)
  29. Puerto Rico (added 7/28/20)
  30. South Carolina (added 6/24/20)
  31. Tennessee (added 6/30/20)
  32. Texas (added 6/24/20)
  33. Utah (added 6/24/20)
  34. Virginia (added 7/21/20)
  35. Washington (added 7/21/20)
  36. Wisconsin (added 7/14/20)

The advisory has become a nightmare for many employers to deal with. I am being barraged with questions about whether employers with employees travelling to the listed states must honor the two week self-quarantine directive. In addition, must the employer pay the employer for such quarantine time?  Many employers are irked about that latter fact: that they might actually need to pay employees who are willfully traveling to hot spots where the COVID virus is spreading like a wildfire. So, what can an employer do in this situation?

The first thing that must be determined is whether the advisory has the force of a legal order that must be followed.  On first glance, the answer to this question would seemingly be no. An advisory is just that: a seeming recommendation to self-quarantine for two weeks after travelling to a designated hot spot for the virus. Moreover, unlike New York and Connecticut, New Jersey has not included any prescribed penalties for the failure to follow the advisory. All this seems to suggest that the advisory does not have the force of law, and employers could compel their employees to come to work and not follow the advisory, which by the way, has a long list of exclusions for certain essential employees and folks who are travelling to New Jersey to work, which also seems to support a conclusion that compliance with the advisory is strictly voluntary.

New Jersey has a COVID-19 website that most thoroughly outlines what the state expects concerning its travel advisory. In what can only be described as classic Orwellian doublespeak, here is what that website says about this compliance issue: “The self-quarantine is voluntary, but compliance is expected.

As a lawyer reading such language, it makes me think that, while couching compliance as voluntary, the advisory really is a legal directive from the state making compliance mandatory – and when push ever comes to shove, I suspect a judge would feel that same way too if any adverse action is taken against an employee who insists upon following the self-quarantine directive.  So what have I been telling employers in this instance: if you can, try and claim that you have an essential employee. A list of those persons can also be found on the NJ COVID website. Otherwise, you likely need to let the employee self-quarantine for the required two weeks.

After concluding that the travel advisory seems to be anything but voluntary, the next question to be addressed relates to whether an employer must pay employees who self-quarantine in light of the advisory. If it is indeed a quarantine order, an employee would be allowed to use either New Jersey Paid Sick Time or might be eligible for paid emergency sick time under the Families First Coronavirus Response Act (“FFCRA”). That seems to flow from my analysis so far.

But, I recently had a conversation with a federal Department of Labor Investigator. That department is responsible for investigating claimed violations of the FFCRA.  Significantly, I was told by this investigator that right now her colleagues in New Jersey believe that the travel advisory is a voluntary requirement: “it says advisory right” or so I was told by the investigator. Thus, it was her view that paid federal paid sick time was not available because a state quarantine “order” was missing, and without such an order, there is no paid sick time eligibility. Confusing, right?  I was further told that the investigators here in New Jersey are awaiting for actual guidance from Washington on this topic. Let’s hope that comes soon.

As can be seen from above, there are a lot of moving parts here when an employer is trying to decide how New Jersey’s travel advisory affects its workforce. One option for the employer is to avoid having to deal with the issue entirely by prohibiting employees from travelling to any of the listed states. Employers have the ability to take such an action. They can ban business trips to those states, and likewise place a moratorium on approving any employee vacations for the next few months while seeing how the pandemic develops further. That way you as an employer know that your employees are not visiting places where a quarantine is required.

Hence, it is confusing to try to figure out what an employer must do in light of New Jersey’s “voluntary” travel advisory that from all indications is really a state “order” requiring full compliance in all respects.  Consequently, employers should proceed cautiously, and guide their actions accordingly, in how they treat employees coming back from restricted states under the advisory.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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EEOC Clarifies Allowable COVID 19 Testing For Employees

Over the last several months, the Equal Employment Opportunity Commission (“EEOC”) has continued to refine its past issued Guidances on what employers can do to safeguard employees from COVID-19 workplace exposure. One such measure that employers can utilize is mandating that all employees be tested for COVID-19.  But previously the EEOC never said what type of testing can be done. The EEOC has recently clarified precisely what kind of testing employers can now require of its employees.

As many know, there are now currently two types of available tests that can be utilized to detect COVID-19 exposure. The first is a diagnostic test that determines whether someone has the coronavirus at the time of the testing. The second kind is an antibody test that determines whether the individual from past exposure to coronavirus has developed any protective antibodies to the virus. When the EEOC announced its earlier Guidance that employee COVID-19 testing was permissible, employers thought that they had the option to require either type (or both) kinds of testing. That has changed with the EEOC’s latest Guidance.

Now, the only kind of testing allowable is diagnostic to determine whether the individual at the time of the testing has contracted COVID-19.  Antibody testing is not allowed-why?  The EEOC’s rationale for prohibiting such testing flows from recommendations from the Centers for Disease Control (“CDC”) which now states that antibody testing should not be used to return persons to the workplace. Deferring to the CDC’s conclusion about the use of antibody tests for returning employees, the EEOC Guidance now has determined that it is not an appropriate medical test that meets the job relatedness requirement for allowable examinations under the Americans with Disabilities Act.

As the EEOC’s recent modification to its Guidance shows, we are dealing with an ever evolving situation that could change literally overnight. Thus, employers must continue to stay on top of all developments on what can and cannot be done as many states continue their phased economic re-openings.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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