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5 New Year’s Resolutions For Your Workplace In 2022

With 2022 around the corner, employers are presented with a wonderful opportunity to review internal policies/procedures and hopefully help avoid future workplace legal problems.  Here are five suggested New Year’s Workplace Resolutions for 2022.

  1. When was the last time your employee handbook was reviewed and updated? Policies and procedures need to be revised periodically to keep current with ongoing changes in the law, especially in a place like New Jersey, where it is frequently the case that new laws and decisions impose new legal requirements. Therefore, 2022 presents a great opportunity for employers to review handbook polices and bring them up to speed with any recent legal changes that impact your workplace, or to reflect changes in your workplace because of adjusting to doing business in a pandemic, i.e. work from home policies. Alternatively, if you do not have one yet, the upcoming new year provides a wonderful chance for your workplace to reap the benefit of having all relevant workplace policies stored in one collective document. Relatedly, when was the last time you conducted anti-harassment training for your workforce? While the pandemic has made this harder to do, virtual trainings are a great way to continue to meet all mandated employee training requirements.
  2. When was the last time your job descriptions were reviewed and updated? Job descriptions are very important, especially in gauging compliance with mandated accommodation requirements for persons with disabilities under both federal and state discrimination laws.  Ask yourself: do your job descriptions accurately reflect what an employee actually does in his/her job today?  Because courts often rely on how an employer defines the essential job functions of an employment position in assessing disability discrimination and failure to accommodate issues, it is important that employers maintain updated job descriptions so there will be a point of reference if any issues arise as to what the essential functions of a job position are for accommodation purposes. Moreover, just like employee handbooks, if you do not have job descriptions today, the beginning of the upcoming year is a good time to commence preparing them.
  3. Are your employee leave policies up to date? It is important under both federal and state leave laws that leave policies are accurate and current. One of the most effective ways of meeting this requirement is having updated leave policies in an employee handbook, so use the beginning of next year to check that such policies are accurate and up to date.
  4. When was the last time you conducted an audit of your payroll practices? One of the chief concerns to examine here is ensuring that all your employees are properly classified as exempt versus non-exempt employees for purposes of their proper compensation under federal and state wage and hour laws. It is always a good idea for an employer to do a quick review of employment classifications each year in case changes need to be made based upon any modifications in employee job responsibilities.
  5. Are you properly performing background checks on current and prospective employees? Remember, there are strict requirements concerning how such background checks are conducted under not only the Fair Credit Reporting Act but also under relevant federal employment discrimination laws such as Title VII. Several years ago, the Equal Employment Opportunity Commission issued a detailed compliance guidance on how the results of a background check can be utilized in assessing a person’s suitability for employment, and New Jersey also passed its own restrictions, i.e. Ban the Box rules, so it is important that all background check policies meet these requirements.
  6. And here is a bonus suggestion for you. Mandatory COVID vaccination requirements are still in flux. The OSHA rule for companies with 100 employees is no longer stayed, and the agency has advised that it will start investigating employers for compliance on January 10, 2022. (Public federal contractor and health care mandates are still subject to court orders barring enforcement of such standards to some degree.)  This means that employers need to start taking steps to meet the requirements of the OSHA mandate-by either collecting proof of employee vaccinations or ensuring weekly testing for employees. Remember also that disability and possible religious exemptions are potentially available to vaccination requirements and employers need to understand how to address such issues.

In sum, the upcoming new year provides a wonderful opportunity for employers to proactively evaluate internal policies and procedures to make 2022 a legally problem free year in your workplace.

A Happy and Healthy New Year to All and please continue to stay safe!!

 


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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Amended NJLAD Offers Greater Protections to Older Workers

On October 5, 2021, Governor Phil Murphy signed a new law that greatly expands the protections afforded to older workers under the New Jersey Law Against Discrimination (“NJLAD”) These Amendments took effect immediately, meaning older workers are now already afforded these enhanced protections against workplace discrimination. As a result, employers today must promptly reevaluate both their hiring practices and any policies requiring that older workers retire when they reach a prescribed age.

The scope of the recent amendments is broad, and change the protections already afforded to older employees under the NJLAD in the following significant ways:

  • Repeals Section 11 of the NJLAD which allowed employers to refuse to accept for employment or to promote individuals over 70 years old. The elimination of this provision broadens employment opportunities for older individuals over 70 years of age, and as a practical matter, means that age can no longer be used as a factor in the hiring or promotion process.
  • Amends Section 5 of the NJLAD that limited the remedies applicable when an employee claimed that he/she was unlawfully forced to retire. Before this law, those employees were required to file a complaint with the Attorney General and relief was limited to reinstatement with back pay and interest. The revised provision now makes available all of the remedies provided by “any applicable law,” subjecting employers who engage in such age discrimination to greater risk of legal exposure through these enhanced remedies.
  • Eliminates the statutory provision that permitted government employers to force mandatory retirement at a certain age if the employer could show “that the retirement age bears a manifest relationship to the employment in question.” Now, government employers must continue to provide employment opportunities to older workers as long as the employees can perform their official duties and responsibilities.
  • Repeals Section 4 of the NJLAD which previously stated that “an employee who has attained 70 years of age who is serving under a contract of tenure or similar arrangement providing for tenure at a public or private institution of higher education may, at the option of the institution, be required to retire.” Under this amendment, mandatory retirement policies based on age at higher education institutions are now no longer permitted.

One question that was prominent upon the passage of these amendments   was how this new law would apply to well established mandatory retirement requirements that applied to certain categories of public employees. Significantly, the new law does not change the mandatory requirement age of 70 for State court judges at any level or for police and fire departments.

In light of these recent changes, employers should review all relevant employment policies to ensure that those policies remain consistent with these new legal requirements and do not run afoul of the added protections for older employees under the newly revised NJLAD.

 


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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Biden’s Vaccination Mandate

In my practice, I am already receiving multiple questions about President Biden’s September 9, 2021 directive requiring that companies with 100 or more employees mandate vaccinations for all work staff or alternatively conduct weekly COVID-19 testing.  Many of my employer clients want to know more about these requirements, in particular, whether they should already be mandating vaccinations or conducting employee testing pursuant to the President’s directive. The answer that I have given to my clients so far is no, nothing is yet required, because we still have no idea what the exact details of those vaccination/testing requirements will be.

Biden’s directive will not become effective until the Occupational Safety and Health Administration (“OSHA”), through its emergency rulemaking authority, issues an actual rule(s) that outlines the scope of the expected federal mandate and provides greater details on what will be required of employers with regards to both vaccinations and testing. Already, there have been murmurs of possible legal challenges to whatever rule is issued.

Through its emergency rulemaking powers, OSHA may issue rules and regulations to eradicate workplace safety risks.  The expectation is that OSHA will ultimately ground its rulemaking here on this issue on the claim that unvaccinated workers pose safety risks to others around them in the workplace. As followers of this blog know, vaccination mandates by employers have long been recognized as a legally valid exercise of employer authority, subject of course to possible health and religious related exemptions. We expect that similar exception requirements will be recognized under whatever emergency rule OSHA issues. We also expect that more details will be supplied about the scope of any required testing requirements once we have OSHA’s rule. While the legality of vaccination mandates by employers is well settled, legal experts differ as to whether OSHA, through its emergency powers, has the legal authority to impose vaccination mandates on employees through their employers. This difference of opinion has generated much of the discussions about the possibility of legal challenges to stop the enforcement of any vaccination rule issued by OSHA.

So, my best advice at this time is to stay tuned. Once we get the final emergency rule(s) from OSHA, there will be greater clarity on both the exact requirements the federal agency is imposing, as well as when employers will be expected to comply, assuming, of course, that no anticipated legal challenges succeed in disrupting or delaying implementation and enforcement.

 


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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The Legality of COVID-19 Employee Vaccinations Mandates

With the Pfizer COVID-19 Vaccine recently receiving full Food and Drug Administration (“FDA”) approval, the question on many employer’s minds is whether legally employers can now mandate employee vaccinations for COVID-19 as a condition of employment.  Even before this recent approval of the Pfizer Vaccine, many employers had already decided to require vaccinations (or alternatively frequent employee COVID-19 testing) even when vaccinations were only approved for emergency use. The emergency use status of the available vaccines made some employers think twice about issuing such a mandate, but with the approval of the Pfizer Vaccine for full use, this likely will now be a game changer and more employers will seek to issue such mandates. In just the last few days, we have already seen some high profile companies implementing mandatory vaccination programs, i.e. Disney, as well as state and local governments, including here in New Jersey.

As I indicated in earlier articles presented here in this blog, vaccine mandates have long been viewed as legal, provided employers made possible exceptions for employees with disabilities that precluded vaccination or for those with religious objections to such vaccinations. COVID-19 vaccination mandates have also recently withstood legal challenges as well in the last few months even with the vaccines having only emergency use approval.  Thus, so long as employers provide the type of exemptions noted above, an employer today may implement a mandatory COVID-19 vaccination program for employees.

If you plan to implement such a mandatory vaccination program, here are some important considerations that should be followed.

First, you should clearly advise employees of the nature of the program and outline the specific consequences that could follow for those who refuse to meet those requirements. The policy should also include language that indicates that exceptions from the requirement will be considered for the foregoing health and religious reasons. Importantly, you need to train your employees on how to handle such exemption requests, and what is legally (or not legally) allowed to be sought during the necessary interactive process while considering the exemption request. Beware in particular of religion-based exemption requests.  For example, there are various restrictions on when you as an employer should ask for information verifying the bona-fide nature of the posited religious belief.  Also, be aware that thanks to the internet today, employees for a fee can actually obtain certifications from various “ministry” religious organization websites that are supplying documentary support for vaccination exception requests (and even mask exemptions on religion grounds). I have seen some of those certifications already used with several of my clients to support a religious exemption to COVID-19 safety protocols, so make sure you proceed with caution anytime you are presented with a religious-based COVID-19 vaccination exemption request. Finally, whether you grant or deny a requested exemption, document the process and the reasons why the particular decision was made.

As more and more employers decide to implement vaccine mandates, we expect to see additional legal challenges filed. We will continue to keep you updated on all possible developments affecting this issue.

 


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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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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