0

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.

0

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.

0

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.

0

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.

0

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.

0

COVID-19 and The High Risk Employee

With businesses reopening thanks to modifications of state stay at home orders, employers are beginning to contemplate what their new work environments will look like when employees return. Over the past several months, the Equal Employment Opportunity Commission (‘EEOC”) has provided guidance to employers regarding the ways that a company can safeguard its workplace in this new era of COVID-19. One hot question is whether employers, out of fear of legal liability from possible COVID-19 workplace exposure, can prevent high risk employees who suffer the greatest possible complications from COVID-19 from returning to work merely because of that possibility of greater harm. The EEOC says no, at least not automatically, just because of that high risk of possible complications.

According to the EEOC, employers cannot bar high risk employees from returning to work merely because of that high risk. Rather, before an employer can take such action, the employer must engage in the traditional interactive process required under the Americans with Disabilities Act (“ADA’) any time an employee with a disability needs a workplace accommodation. Since high risk employees have one or more underlying medical conditions that cause them to be high risk, the EEOC directs that employers engage in the interactive process to determine whether there are ways of minimizing that employee’s exposure to COVID-19 in the workplace. As part of that interactive process, the employer can assess whether the employee would pose a direct risk of harm to either themselves or others, but in making that assessment, there must be actual objective proof of possible harm.

Under this standard, a direct threat assessment cannot be based solely on an underlying condition being on the Center for Disease Control’s list of high risk factors. Rather, the determination must be an individualized assessment based on a reasonable medical judgment about a particular employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulations require an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. According to the EEOC, assessment of these factors should also include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his/her particular job duties. A determination of direct threat also should include an analysis of the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing or the wearing of face masks and gloves, also would be relevant in determining the possibility of a direct threat of harm. Thus, according to the EEOC, ultimately an employer may only bar an employee from the workplace only if, after going through all the foregoing steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself/herself that cannot be reduced or eliminated by reasonable accommodation.

In light of this EEOC directive, employers should not rush to judgment in deciding to bar a high risk employee from returning to the workplace due to COVID-19. Adherence to the traditional interactive process required by the ADA will enable an employer to navigate through this complicated issue and reduce the chances of significant legal harm arising from the mishandling of such fears during this continuingly evolving pandemic.

 


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.

0

EEOC Updates Guidance on COVID 19 Workplace Prevention

Last month, I wrote an article outlining the steps that employers may take to guard against coronavirus in their workplace. Thanks to a recent Guidance issued by the Equal Employment Opportunity Commission (“EEOC”), employers were able to implement several steps, such as taking employee temperatures and insisting that employees stay home if sick, to prevent COVID 19 spread in the workplace. Recently, the EEOC has expanded on this Guidance, and has added another tool for employers to use in their fight to prevent contagion of their workplace. Now, not only can employers require that previously positive COVID 19 employees provide medical documentation that they are fit to return to work, but employers can now also actually choose to administer COVID-19 testing themselves to all employees before they enter the workplace to determine if they have the virus. The one important question that the Guidance does not answer, however, is where employers will actually get those tests to administer given the well-publicized testing shortages that currently exist in fighting the on-going pandemic.

So, why is such testing permitted? Given the current pandemic, according to the EEOC, such testing is “job related and consistent with business necessity” because any employee who is COVID 19 positive poses a direct threat of harm to the safety of other employees, which is the standard applied for allowing such employee medical testing under the Americans with Disabilities Act. (“ADA”) The EEOC nevertheless cautions that, consistent with this ADA standard, employers should ensure that the tests are accurate and reliable. In this regard, Employers are urged to review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers are also advised to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, the Guidance further warns also that accurate testing only reveals if the virus is then currently present, and that a negative test does not mean the employee will not acquire the virus at some later juncture.

In the end, while allowing testing, the EEOC ultimately urges that employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other similar measures) in the workplace to prevent transmission of COVID-19 as recommended by the CDC and other federal and state health organizations.

So, if you are an employer lucky enough to have access to testing, you now have the green light from the EEOC to administer such testing across your workforce.  If you do decide to implement such testing measures, remember that, it being a medical test, ADA confidentiality and privacy rules apply to both the communication of (and maintenance of) results, and such sensitive private medical information should only be shared with others on a need to know basis.

0

COVID-19: What Can An Employer Do?

As many businesses are temporarily shutting down due to Governor Murphy’s closure order here in New Jersey, what can those other employers do who remain open to help safeguard against COVID-19 infestation of its workplace. Well, the answer might surprise you thanks to a recent guidance from the Equal Employment Opportunity Commission (“EEOC”).

Under this EEOC Guidance document on the ADA and the COVID-19 virus, several measures are outlined that employers can use to protect its workplace. Along with stressing the need to follow good hygiene practices as recommended by the CDC, ADA-covered employers during a pandemic like ours may additionally ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must however maintain all information about employee illness as a confidential medical record in compliance with the ADA. Also, while generally measuring an employee’s body temperature is a medical examination, because the CDC and state/local health authorities have acknowledged community spread of COVID-19, and issued attendant precautions, employers may also measure employees’ body temperature without running afoul of any legal requirements. (However, note of caution: be aware that some people with COVID-19 do not have a fever.) Finally, you can also direct persons with symptoms of the virus to go home and leave work or just stay at home if they have any sickness at all.  The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. Significantly, the ADA does not interfere with employers following this advice, and many of my employer clients are regularly telling employees this to get that message out about staying home.

So, you can certainly be proactive in guarding your workplace consistent with the above guidelines. And given the serious public health crisis that now exists, I suspect even the New Jersey Department of Labor will have no issue with employers who follow this ADA guidance, so long as confidentiality is preserved relating to the receipt of employee medical information.

Please everyone out there be careful and stay safe during these trying times.  We will collectively get through this together if we just act smart and do all that can be done to keep our workplaces safe when continuing to operate.

0

Be Warned About NJ WARN

Employers already know that, anytime a mass layoff or plant closing is contemplated, there are significant federal and New Jersey state law notice requirements. This past January, 2020, Governor Murphy signed into law a radical legislative amendment to the New Jersey WARN Law (known officially as the “Millville Dallas Airmotive Plant Job Loss Notification Act”) that makes it the most costly and burdensome reduction in force law soon to be in force in the United States.

Beginning on July 19, 2020, the following drastic changes will be effective under the newly revised New Jersey WARN Law.

  1. The New Jersey WARN Law will be triggered by a termination of 50 or more employees, regardless of employee tenure or hours worked, and with the aggregation of all terminations across the state, no matter where in the state the termination occurred.  Under this change, no longer will employers be able to ignore part-time employees in calculating the threshold number for coverage, and coverage is no longer limited by looking at only a single site of employment. The amendments also eliminate the previous requirement under the statute that a mass layoff would only occur if at least 33 percent of a workforce was affected.
  2. The required notice period under the NJ WARN Law will be 90, and not the current 60 days.
  3. Severance Pay will be automatic! This is the most radical of the changes made to the New Jersey WARN Law.  Under the current law, severance pay was only required if the employer failed to provide the necessary 60 days’ notice. When the revised New Jersey WARN Law is triggered, employers must pay employees one week of severance for each year of employment!  Where the employer has failed to meet the Law’s notice requirements, the severance obligation requires an additional payment of four more weeks on top of what is already statutorily required.
  4. Under the revised Law, the above required severance payments cannot be waived without state or court approval. So, any settlement of contested New Jersey WARN Law claims will need to receive either Court or state agency approval.
  5. The coverage of the New Jersey WARN Law has been expanded to include all employers with at least 100 employees, regardless of employee tenure or number of hours worked. Previously, employees with either less than six months of service, or who worked less than 20 hours per week, could be excluded from this threshold calculation.  No more. The part of the Law that requires that an employer be in operation for at least three years thankfully remains unchanged.

In light of these sweeping changes to the NJ WARN Law, employers will now need to proceed with even greater caution when contemplating a possible plant closing, mass layoff, or even just a significant layoff. Employers must be aware of and adhere to these new requirements, especially those involving the timing for issuing the required notice and the making of required severance payments. Special precautions must also be followed when seeking a release of claims in connection with any type of covered reduction in force. When the New Jersey WARN Law is applicable, the employer will now have to pay employees more than just the statutorily required amount of severance to obtain an effective release of claim. This is because, to obtain a legally effective release, the employee must be given something by the employer beyond what an employee is already legally entitled to receive.

So, you have now been warned about the amended New Jersey WARN law! Please take these precautionary words to heart!

 


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.

0

Pregnancy Discrimination Explained

In a recent New Jersey Appellate Division case, Delanoy v. Township of Ocean, No. A-2899-17T4 (App. Div. January 3, 2020), our state appellate court issued a significant new decision that explains what an employer’s legal obligations are to eliminate discrimination against (and provide reasonable accommodations to) its pregnant employees. This is the first published court opinion addressing these important legal issues for employers.

Back in 2013, the New Jersey Legislature amended the New Jersey Law Against Discrimination (“LAD”) through passage of the New Jersey Pregnant Workers Fairness Act (“PWFA”).  The PWFA revised the LAD to expressly prohibit pregnancy-based discrimination in employment while imposing other legal requirements upon employers regarding how pregnant employees could be treated in the workplace. Among those other important legal requirements, the PWFA obligates employers, subject to an undue hardship exception, to afford reasonable accommodations in the workplace to pregnant women, when requested, and also to not penalize women due to their status of being pregnant.

The Plaintiff in Delanoy was employed as a police officer. When she became pregnant with her second child, she informed her supervisor that at the direction of her doctor she needed to be taken off her patrol duties and receive some sort of light duty position during the period of her pregnancy. As a result of her request, the employee was placed into a light duty non-patrol position pursuant to a “Maternity Assignment Standard Operating Procedure” that was a previously adopted policy by the employer. That policy enabled pregnant workers to work a different maternity job assignment, but in exchange for the modified assignment, the pregnant officer had to use all of her accrued paid leave time off (e.g. vacation, personal and holiday time) before going on that different work assignment. The police department employer also had a separate light duty assignment policy for non-pregnant injured officers who also needed a different temporary job assignment. Unlike the maternity reassignment policy, this light duty policy gave the police chief the authority to waive the condition of utilizing accrued leave time as a prerequisite for receiving the light duty assignment.

Plaintiff filed suit against her employer claiming that the maternity reassignment policy discriminated against pregnant employees since it was less favorable than the separate light duty non-pregnancy policy, which made provision for the waiver of the required exhaustion of paid leave time. Because of this disparity, the Plaintiff argued that the policy on its face discriminated against pregnant employees in violation of the PWFA because such employees were penalized in requesting an accommodation by losing their paid leave time as a condition for receiving the requested accommodation.  Reversing the trial court’s determination of no discrimination, the Appellate Division agreed with the Plaintiff that the maternity assignment policy discriminated against pregnant workers because unlike non-pregnant workers who could seek an exception to the paid leave use requirement under the light duty policy, the maternity reassignment policy allowed for no such exemption. In light of this finding, the court declared the policy to be illegal on its face and enjoined its further enforcement moving forward by the employer.

In light of the court’s ruling in Delanoy, employers need to familiarize themselves with the unique obligations owed to pregnant workers who may need a workplace accommodation under the PWFA.  Not only does that law prohibit discrimination against pregnant workers, but it also affords those employees with the opportunity to receive an accommodation because of their physical condition.

Hence, to assist employers in understanding that accommodation duty, the PWFA cites various examples of possible required accommodations, which could include “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedule, and temporary transfers to less strenuous or hazardous work….”  Of course, this accommodation duty is subject to application of an undue hardship exception, and the law likewise lays out various considerations for making that determination as well (i.e. size of employer, size of work facility, size of company budget, etc.).

In sum, the PWFA significantly changed the legal landscape for employers as it relates to its pregnant workforce, so employers must be ever cognizant of the law’s requirements and ensure that workplace policies do not treat non-pregnant workers better than pregnant workers, or punish such employees due to their condition, especially those policies and practices that impact upon available accommodations that an employer may be willing to make for its general workforce.

 


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.

1 2 3 4