SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Articles Posted in COVID-19

As schools scramble to figure out how best to reopen in a couple of weeks, with many opting for a fully remote start to the school year, teachers in some districts are faced with an all too familiar problem for working parents. How will they manage teaching in person and caring for their own kids at the same time? In towns that had planned to reopen with in person instruction, an increasing number of teachers whose children will be at home learning remotely are availing themselves of the 12-week leave available to them under the Families First Coronavirus Response Act (FFCRA). This leave will allow them to care for their own children while many school buildings and childcare centers remain closed.

IMG_4199-300x169The FFCRA is a temporary expansion to the Family and Medical Leave Act (FMLA) that requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply through December 31, 2020 to covered employers (those with between 50 and 500 employees) and any employee who has been employed for at least 30 days. Employees can request leave at any time, for several reasons, including because the employee must quarantine, a dependent of the employee must quarantine, or for childcare when the child’s school or usual childcare provider is closed or unavailable for reasons related to COVID-19. When the leave is requested for childcare, employees are entitled to up to 12 weeks of partially paid leave that is subtracted from what would otherwise be their FMLA time. Employers of healthcare workers and first responders can opt out of providing this leave, and employers with fewer than 50 employees can opt out of granting leave requests specifically for childcare issues if granting the request would jeopardize the viability of the business.

Teachers who suffer from disabilities may also be entitled to accommodations, including leave of absence, if they can show the requested accommodation is reasonable and supported by medical evidence.  The Law Against Discrimination prohibits employers from discriminating against disabled employees in connection the terms and conditions of their employment.  The Law Against Discrimination also requires employers to engage in an interactive process with disabled employees who are in need for assistance, and provide them with reasonable accommodations, unless they can show it would be undue hardship on the school’s operations to provide the accommodation.

For many working parents, school closures across the State of New Jersey since mid-March have posed insurmountable challenges as families attempt to manage work obligations with remote schooling and closed childcare centers. Now that the school year is over for most students and many summer camps are shuttered or running virtually, working parents are faced with a new set of childcare challenges that will impact their ability to fulfill work obligations. What options are available to working parents who are unable to balance the demands of work and childcare during Covid-19 closures this summer?

IMG_3800-300x169The United States Department of Labor (DOL) said Friday in one of its guidance letters that working parents may be entitled to up to 10 weeks of partially paid leave over the summer to care for their children if they can show that the virus disrupted plans to send them to a summer camp. To be eligible for such leave under the Families First Coronavirus Response Act (FFCRA), covered workers include those employed by small and mid-size employers—those with more than 50 but fewer than 500 employees.

How does an employee demonstrate the intended plans for his or her children to attend a summer program? Proof of summer camp plans were firm and then disrupted by the virus should be sufficient. The key inquiry is whether there is any “evidence of a plan” to rely on summer camp as a means of childcare, and to consider whether it is “more likely than not” that if the camp was running normally, the child would be attending. Examples of sufficient proof might be an application or deposit that was submitted to the camp, proof that a child was already enrolled in a camp that is now closed, showing the child attended summer camp in previous years, having the child’s name on a camp’s waitlist, or some other indication of the worker’s intent to enroll the child(ren). At a minimum, the employee’s affirmative steps to secure a spot in a summer camp evidences “plans” that should satisfy FFCRA’s requirement for coverage. An employee who merely expressed an interest in a summer program but took no concrete steps toward enrollment will likely not be covered.

Many of us have heard of employee whistleblowers who go public with their employer’s egregious wrongdoings and suffer job loss or other retaliation for doing so. Both the federal government and the State of New Jersey offer protections to these conscientious employees.  For example, a federal law called the Whistleblower Protection Act of 1989 protects employees who disclose evidence of illegal or improper governmental activities. In New Jersey, we have enacted the Conscientious Employee Protection Act, which is viewed as one of the furthest reaching whistleblower laws in the country. Whistleblower laws such as these were enacted to assure that employees have protections when they do the right thing and oppose unlawful activity of their employer.  We, as a society, belief that employers and the government must play within the rules to protect people from being harmed from dangerous situations that can be caused by unlawful conduct.

IMG_3937-300x169There is perhaps no better example of the importance that whistleblowers can play in stopping governmental behavior that can cause harm to people than the allegations that Dr. Rick Bright has made against the government concerning its COVID-19 response. Dr. Bright was recently ousted from his prominent position as Director of the Biomedical Advanced Research and Development Authority (BARDA) for what he alleges was in retaliation for disclosing certain violations of law, gross mismanagement and waste of funds, abuse of authority and substantial and specific danger to public health and safety of the government in response to the Covid-19 pandemic.

Dr. Rick Bright recently began making headlines when he went public with his Complaint alleging Whistleblower Retaliation filed with the United States Office of Special Counsel. In the lengthy filing, Dr. Bright alleges that he was fired from his position within the Department of Health and Human Services (HHS) after he refused to spend money on unproven and potentially dangerous drugs that the White House was touting as promising treatments for Covid-19, and he resisted pressure to put in place a national program geared toward expanding public access to those drugs.

The federal government recently enacted the Families First Coronavirus Response Act which provides emergency aid to workers as a result the Covid-19 outbreak. The Families First Coronavirus Response Act is a compressive package that, in part, temporary amends the Family and Medical Leave Act (“FMLA”) to incorporate, paid sick leave and extended family leave to support workers that can no longer work due to the coronavirus pandemic.

IMG_4103-300x169With respect to paid leave, the Families First Coronavirus Response Act is essentially comprised of two components: The Emergency Paid Sick Leave Act and The Emergency Family and Medical Leave Expansion Act.

The Emergency Paid Sick Leave Act

Governor Murphy signed legislation yesterday that amends the New Jersey Family Leave Act to provide job protections to employees who need to take leave from work during the COVID-19 epidemic in order to care for a family member because of qualifying reasons relating to the coronavirus. The passing of S2374 is part of a series of new laws enacted to address the COVID-19 pandemic and the severe impact it is having on New Jersey workers both at home and at their place of work.

IMG_4018-300x169In a press release, Governor Murphy said, “New Jerseyans should not have to make a decision between caring for a loved one with COVID-19 and keeping their job.  Our state is already home to the nation’s most comprehensive Family Leave Act, and it’s only right that we expand these protections to meet the unprecedented health crisis we are facing.”

The New Jersey Family Leave Act provides eligible employees with up to twelve (12) weeks of job protected leave for certain qualifying reasons relating to family leave.  These include bonding with a new born, adopting a child, the placing of a child into foster care with the employee or providing care to a family member who is suffering from serious health condition. The New Jersey Family Leave Act does not permit employees to take leave for their own serious health condition and therefore does not permit employees to take leave for their own heath related COVID-19 reason.  Employees who are suffering from COVID-19 could be eligible for leave under other laws such as the Family and Medical Leave Act, New Jersey Law Against Discrimination  or Americans with Disabilities Act.

The COVID-19 pandemic has forced many New Jersey employees to work in unsafe work environments.  Facing increased risk of exposure, many employees are rightfully concerned that they will become infected or infect others because of their employer’s failure to have in place proper safety measures limiting the spread of COVID-19 at the workplace. Not surprisingly, many New Jersey workers who are forced to work in unsafe working environments have voiced objections to their employers, governmental officials and others concerning the unsafe work environments. With the increased number of employee complaints, many complainants are left wondering whether they have any legal protection against their employers who have taken adverse employment action against them in retaliation for their complaints. While we indeed may be living in unprecedented times, the COVID-19 pandemic is not a defense available to employers who choose to retaliate against employees for making reasonable and good faith complaints concerning unlawful workplace issues. Luckily for New Jersey workers, the state’s strong whistle-blower laws can provide employees with legal protections should they be fired from their jobs for complaining about unsafe work environments, improper quality of patient care or other unlawful business activities.

IMG_3937-300x169The New Jersey Conscientious Employee Protection Act is often described as being one of the most far-reaching, pro-employee, whistleblower statutes in the United States.  The purpose of the New Jersey anti-retaliation law is to protect whistleblowers from being retaliated against when they disclose, complain, object to or refuse to participate in certain actions at the workplace that he or she has a reasonable belief to be either unlawful, in violation of public policy or improper quality of patient care, should the employee be a licensed or certified health care professional.  A retaliatory action can manifest in the form of a demotion, suspension, termination or other forms of adverse action that would dissuade a reasonable worker from making or supporting a charge of unlawful retaliation.

Governor Murphy’s Executive Order No. 107 may also provide COVID-19 whistleblowers with additional legal support that their COVID-19 related complaints are protected under the New Jersey whistleblower law.  While Executive Order No. 107 bans many non-essential retail businesses from operating during the pandemic, it also places obligations upon essential or non-retail businesses and how they need to operate their business during the pandemic. For example, all businesses must accommodate their workforce, wherever practical, for telework or other work-from-home arrangements.  Additionally, for employees who cannot perform their job duties via telework or work-from-home, businesses should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue. Many businesses are ignoring these requirements in running their business during the pandemic.

An employee may have a claim for whistle-blower retaliation under New Jersey state law if their employer takes adverse employment action against him or her for complaining directly to the employer or or reporting violations of New Jersey Executive Order 107 to a governmental agency.  Executive Order 107 was signed by Governor Murphy on March 21, 2020 in furtherance of concerted efforts to stop the spread of COVID-19.  Since its passing, there have been many news stories of New Jersey employees reporting that employers are conducting business as usual and in violation of their legal obligations under Executive Order 107. Employers who retaliate against their employees for “blowing-the-whistle” on violations of Executive Order 107 may also find themselves subjected to liability under the New Jersey Conscientious Employee Protection Act.

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The New Jersey Conscientious Employee Protection Act is considered one of the furthest reaching anti-whistleblower statutes in the country.  New Jersey’s whistle-blower protection law makes it unlawful for an employer to take adverse employment action (including, but not limited, to termination) against an employee for engaging in protected activity that is covered by the statute. There are many forms of protected activity recognized under the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34-19-3.  For example, an employee who discloses or threatens to disclose to a supervisor or public body practices or acts of the employer that he or she reasonably believes to be in violation of a law, rule or regulation promulgated pursuant to the law is engaging in protected activity under the statute.  Protected activity can also include objecting to or refusing to participate in any activity, policy or practice that the employee reasonably believes is “incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.” N.J.S.A. 34-19-3(c)(3).

The clear stated purpose of Executive Order 107 is to limit the spread and mitigate the impact of COVID-19.  In order accomplish the objections of the executive order, Governor Murphy ordered specific directives upon employers concerning how they must conduct their business operations during the coronavirus pandemic.  Among other things, Executive Order 107 directs the temporary closure of non-essential retail businesses.  It also mandates non-retail businesses to accommodate their workforce for telework or work-from-home arrangements. The term “telework” is defined in the order as “the practice of working from home or alternative locations closer to home through the use of technology that equips the individual to access necessary materials.”  The order further states that in situations in which employees cannot perform their job functions via telework or work-from home arrangements, the employer should make best efforts to reduce staff on-site to the minimal number of workers necessary to ensure the continuation of essential business operations.

For New Jersey employees, the short answer is yes.  On March 20, 2020, Governor Murphy signed into law new legislation that makes it unlawful for an employer to take adverse employment actions, including termination, against any employee for requesting or taking time off from work because the employee has or is likely to have the Coronavirus. The new law, A3848, comes in the wake of the Public Health Emergency and State of Emergency declared by Governor Murphy earlier this month. This new Coronavirus job protection law will provide victims of the virus with much needed protections from losing their job or being denied reinstatement.

IMG_3800-300x169The legislation was enacted as a part of the New Jersey’s continued efforts to deal with the Coronavirus pandemic and the devastating impact is having and will continue to have on individuals and their employment. In the last few weeks, the number of confirmed cases of Coronavirus in New Jersey has continued to climb and is expected to continue to rise expenditionaly. Among the attempts to slow the spread of the disease, medical professionals have advised those who have contracted or are suspected to have contracted the novel Coronavirus to quarantine themselves. Even those individuals who have not come in to contact with the disease are being urged to practice social distancing, isolating themselves in an attempt to limit potential exposure to the disease. As Governor Murphy stated in one of his recent press briefings, “Quite simply, stay at home.”

Prior to the passing of this Coronavirus job protection law, it was unclear what sort of job protection a quarantined individual would have during the Coronavirus outbreak. The New Jersey Law Against Discrimination, which provides employees protection from discrimination and retaliation in the workplace, has a broad definition of “disability” that includes certain types of serious illnesses. However, some courts have interpreted the New Jersey Law Against Discrimination’s broad provision concerning disabilities not to cover transient illnesses such as the flu. While the Coronavirus is concernedly much more serious than the common flu, it remains unclear whether the New Jersey Law Against Discrimination is a viable avenue to relief for affected employees.

Earlier this week, we wrote about a package of proposed bills submitted by the New Jersey Assembly Democratic Caucus, designed to provide relief for New Jersey citizens suffering the impacts of the coronavirus pandemic (“Coronavirus”). Specifically, we focused on three proposals designed to address some the employment-related impacts of the virus: missing work due to illness or family-care needs, missing work due to job closure, and the potential for employment-related retaliation taken against those individuals who missed work due to one of the impacts of the virus.

IMG_0999-300x169These three bills – A-3846 , A-3847 , A-3848 were each passed by the State Assembly on Monday, March 16th.  Although the Assembly ultimately passed each bill, they were not passed with equal support: A-3846 and A-3848 were passed unanimously (65-0), while A-3847 passed with 56 votes in favor compared to 4 votes against and 5 abstentions. This third bill, a bill that would provide paid sick leave to certain local government employees without requiring those employees to first use up any accrued leave they might have, was clearly the most contentious of the three.

Once these bills were sent to the State Senate for review, the contentious nature of A-3847 remained apparent: the Senate has neither voted on nor taken any action with regards to the bill. In comparison, on Thursday March 19th, the Senate mirrored the Assembly and unanimously passed versions of A-3846 and A-3848. Thereafter, on Friday March 20th, Governor Murphy signed the second of these bills, A-3848, into law. This bill prohibits employers from retaliating against any employees who missed work or requested time off of work due to the Coronavirus, if such request or medical leave was made or taken pursuant to a recommendation from a medical professional. The remaining bill, A-3846, remains on Governor Murphy’s desk and will likely be approved and passed into law in the days or weeks ahead.

The New Jersey Assembly Democratic Caucus will introduce a package of 25 bills, each designed to address a different aspect of the impact from the novel coronavirus COVID-19 pandemic (“Coronavirus”). Some of these impacts are directly related to the Coronavirus, but many others are the downstream, unintended but unavoidable consequences of policies and practices instituted to combat further spread of the virus. Many of these policies and practices have focused on limiting or eliminating social interaction, wherever possible.  While this may be the best method of stopping the spread of the virus, it creates additional problems in the context of employment rights and protections.

IMG_0999-300x169Many of the proposed bills in this package impact employment in ancillary ways, however three of the bills are specifically designed to provide employment protections. If passed, these bills would provide critical benefits for employees who are impacted by the Coronavirus pandemic, including providing payment of lost wages, provision of paid sick leave, and job protections for individuals who take leave. As is discussed in detail below, these proposed bills do not apply to all employees or all situations.

“Temporary Lost Wage Unemployment Program” (A-3846)

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