Lauren E. Tedesco, Esq., a shareholder in the firm’s School Law Group, was recently interviewed by Special Ed Connection on the topic of accommodations for students who are unable to wear face coverings.
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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.
On July 1, 2020, Governor Philip Murphy signed Senate Bill 2273 which requires alterations in health insurance plans and changes to school employee contributions toward the cost of health coverage. The law takes effect immediately and in some respects overrides collective negotiations agreement provisions. The new law will impact negotiations, budgeting and insurance benefit planning. Key components include:
On June 12, 2020, the New Jersey Department of Education (“NJDOE”) provided guidance to school districts on the delivery of extended school year (“ESY”) services to eligible students with disabilities during the COVID-19 pandemic. The NJDOE’s guidance was in response to the Governor’s recent Executive Order 149 allowing for in-person ESY programming beginning on or after July 6, 2020. Pursuant to the Individuals with Disabilities Education Act (“IDEA”) and corresponding New Jersey regulations, once a school district determines that a student with disability requires additional educational services during the summer, the school district is required to include an ESY program as part of that student’s individualized education program (“IEP”). ESY programs usually operate in July and August.
According to the NJDOE’s guidance, school districts are not required to transition to in-person ESY, as the discretion is left to each individual school district. In considering whether a school district can or should operate an in-person ESY program, the NJDOE urges school districts to determine whether they can comply with the New Jersey COVID-19 Youth Summer Camp Standards issued by the New Jersey Department of Health (“NJDOH”). In addition, the NJDOE encourages school districts to consider a combination of remote and in-person instruction during ESY. Further, the NJDOE suggests that in-person evaluations can resume during this period.
If a school district decides to provide any kind of in-person instruction during ESY, it must submit an attestation to the NJDOH confirming that it will follow all applicable standards. This attestation must be submitted 24 hours before the anticipated opening date.
The NJDOE also reminds school districts to consider educational equity, including access to technology and the rights of students with disabilities under the IDEA.
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.
Earlier this week the Center for Disease Control and Prevention (“CDC”) released guidance for K-12 school administrators on the reopening of schools. The guidance is titled “Interim Guidance for Resuming Schools and Day Camps.”
The largest section of the guidance is the Social Distancing section which encouraging schools to promote social distancing to the fullest extent possible. Steps 1 and 2 of the promotion of social distancing include suggestions, such as student and staff groupings remaining static (same students with same staff members), cancelling of field trips, inter-group events and extracurricular activities, limitations on gatherings, and restrictions on non-essential visitors and volunteers. Additionally, this section includes space seating/desks at least six feet apart and the turning of desks to face in the same direction as opposed to facing one another. For cafeteria and playgrounds, it is recommended that attendance in these areas be staggered and areas be disinfected between use. For transportation to and from school, the CDC suggests staggering arrival and departure times and locations and to create social distancing on school buses where possible.
The guidance places strong emphasis on consultation with local and state health authorities in order to best tailor the procedures to keep communities safe during a gradual scale up of operations. The guidance is also organized into sections and the sections further incorporate the scope and nature of community mitigation with suggested decreases from Step 1 to Step 3 (Step 1 being the most aggressive mitigation measures). However, the CDC explicitly notes: “Some amount of community mitigation is necessary across all steps until a vaccine or therapeutic drug becomes widely available.”
In all steps, schools should strive to protect staff members and students who are at a higher risk for severe illnesses, which can include continuing to telework and/or virtual learning.
It is also suggested that schools ramp up hygiene and cleaning practices, including but not limited to: teaching and reinforcing hand washing and covering coughs and sneezes between children and staff; face covering wearing; adequate hygiene supplies such as soap, hand sanitizer (with at least 60% alcohol), paper towels, tissues, and no-touch trash cans; frequent cleaning and disinfecting of touched surfaces (for example: playground equipment, door handles, sink handles, drinking fountains); and proper ventilation systems that increase outdoor air circulation.
The guidance closes with a recommendation for a short term (1-2 days) school closure for cleaning and disinfection, in the event a person diagnosed with COVID-19 is determined to have been in the building and poses a risk to the community.
The CDC makes it clear on their website that this issued guidance is “interim,” which is interpreted to mean there could be need to amend in the near future should circumstances change. School administrators should look closely at the guidance in formulating their local plans to the New Jersey Department of Education.
On April 20, 2020, the New Jersey Supreme Court issued an important decision regarding a teacher’s right to compensation for unused sick leave at the time of retirement or separation from a board of education. In Barila v. Board of Education of Cliffside Park, the State’s Supreme Court held that the unambiguous terms of the collective bargaining agreement between the teachers’ union and the board of education dictated the right to sick leave compensation upon retirement and such agreement did not violate a vested right.
The Cliffside Park Education Association (“Association”) is the exclusive collective bargaining representative for all teachers employed by the Cliffside Park Board of Education (“Board”). The Association and the Board entered into a collective negotiations agreement in 2012 (“2012 CNA”). The 2012 CNA stated that compensation for unused sick leave at the time of retirement or separation was capped at $25,000. In 2015, the Association and the Board entered into a new CNA (“2015 CNA”), which lowered the cap on unused sick leave to $15,000. The 2015 CNA did not contain a “grandfather” clause.
The Plaintiffs in this case were teachers who accrued more than $15,000 worth of unused sick time. They sued the Board claiming that they had a vested right to unused sick leave compensation up to the $25,000 cap under the 2012 CNA for various reasons, including because they believed they never consented to the new cap of $15,000.
The New Jersey Supreme Court reversed the Appellate Division on this issue and held that the teachers did not have a vested right. As the exclusive representative for the teachers, the Association validly entered into the 2015 CNA with the Board and limited the compensation for unused sick leave to $15,000. A teacher’s right to compensation for unused sick leave only vested when that teacher served the length of time required by the collective bargaining agreement and was retiring or separating from the school district. The 2015 CNA replaced the 2012 CNA, and nothing in the 2012 CNA suggested an additional right to compensation for unused sick leave after the 2012 CNA expired. Therefore, the 2012 CNA did not apply to the teachers, and their right to compensation for sick leave was limited to $15,000 under the 2015 CNA.
Editor: Sanmathi (Sanu) Dev, Esq.
On April 14, 2020, Governor Murphy signed A3904/S2337 into law which permits use of virtual and remote instruction to meet the minimum 180 day school year requirement. The new law does not stop there.
The law requires payment of benefits, compensation and emoluments to school employees as if school remained open during the school closure (irrespective of whether employees are covered by a collective negotiations agreement) and to a contract service provider pursuant to the terms of the contract in effect prior to the school closure as if the services had been provided. Additionally, A3904 adds a requirement to make payments for benefits, compensation, emoluments and all payments required by N.J.S.A. 18A:6-51 et seq. to an educational services commission, county special services school district, and a jointure commission, and under any shared services agreement and cooperative contract entered into with any other public entity.
The law contains some conditions and exceptions so school districts should consult with legal counsel regarding the law’s implications.
Editor: Sanmathi (Sanu) Dev, Esq.
On March 31, 2020, the Third Circuit Court of Appeals decided the matter of Petti v. Ocean County Board of Health, 2020 U.S. App. LEXIS 10082 (3d Cir. 2020). Plaintiff B. Janet Petti was an accountant for the Ocean County Board of Health (“OCHD”) and worked in one of the two buildings at OCHD’s office campus. Construction began at the building next to where Petti worked. Petti reached out to OCHD’s Director of Administration and Program Development regarding construction debris and asbestos out of concern it could aggravate her unspecified medical condition. OCHD responded that an asbestos sampling survey had been completed and concluded there was no asbestos-containing material at the site. Petti also received a report, conducted at the construction site by an external consultant, indicating that the construction site was free of external debris or other hazards.
Despite these reports, Petti submitted a letter to her supervisor requesting unspecified reasonable accommodations as well as a doctor’s note stating she was to avoid exposure to dust, chemicals, construction materials, and respiratory irritants, due to “pulmonary dysfunction.” OCHD provided Petti with leave under the Family Medical Leave Act (“FMLA”) and while Petti was on FMLA leave, OCHD had additional testing completed for mold. All tests also came back within the normal range. In addition, the Public Employees Occupational Safety and Health Program conducted a full inspection and investigation of Petti’s work area and determined there were no violations of health standards.
OCHD also sent Petti a letter detailing the steps taken to ensure that her workplace was safe and further indicated that her work station was moved. She would be provided with a respirator or particulate dusk mask and “out of an abundance of caution,” an air scrubber would be installed in her department as well. OCHD also requested that Petti meet to discuss the proposed accommodations. Petti did not respond to this offer, claiming the only solution was to transfer to another location. At this point, the District Court and Third Circuit determined the employee caused a breakdown in the interactive process.
Petti filed a lawsuit against OCHD alleging, inter alia, disability discrimination and retaliation under the Americans with Disabilities Act (“ADA”). The District Court granted OCHD summary judgment on Petti’s claims and the Third Circuit affirmed finding that Petti did not state a prima facie case of ADA discrimination based on the claim OCHD failed to provide her requested reasonable accommodations. The Third Circuit determined that communication ultimately broke down when Petti failed to respond to OCHD’s request for a meeting to discuss the proposed accommodations for her, for which OCHD could not be faulted.
This case emphasizes interactive process required by both the employer and the employee. A refusal by the employee to participate and/or refusal to consider only one accommodation could result in a breakdown of this process leading to dismissal of the employee discrimination claims under the ADA.
As previously addressed on this blog, on March 20, 2020, Governor Murphy signed Assembly Bill No. 3849 into law which relaxes the deadline by which public agencies are required to respond to requests for government records under the Open Public Records Act (“OPRA”) during a period of a declared emergency, such as the current COVID-19 health crisis. On March 26, 2020 the Government Records Council (“GRC”) issued a special statement regarding the modification.
Under normal circumstances, the custodian of records of a public agency must respond to an OPRA request within seven (7) business days by either granting access to the government record or denying access. However, during a State declared emergency, public health emergency, or state of local disaster emergency, the custodian must make a reasonable effort, as the circumstances permit, to respond to a request for access to a government record within seven (7) business days or as soon as possible thereafter.
In discussing “reasonable efforts,” the GRC advised that the custodian of records is required to respond in writing within seven (7) business days that an extension to a date certain is needed. The custodian should articulate the reason(s) for the extension, which may include retrieval of records located in storage, archives, or off-site; conversion of the records to a different medium; building access restrictions; and/or delay in available personnel needed to provide responsive records.
The GRC also recommends that the public agency advise the public (i.e., via its website) whether the transmission of OPRA requests has changed.
