SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Articles Posted in Family and Medical Leave Act

On June 5, 2020, new federal legislation was introduced that would protect family caregivers from workplace discrimination. Introduced by United States Senator Cory Booker (D-NJ), the Protecting Family Caregivers from Discrimination Act would make it unlawful for an employer to (1) fail or refuse to hire an applicant because of the family caregiver responsibilities of the applicant; or (2) take adverse action or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because of the family caregiver responsibilities of the employee. The proposed law would also make it unlawful for an employer to interfere with or restrain the employee from exercising his or her rights under the act, and to retaliate against an employee for seeking enforcement of these protections.

IMG_0999-300x169The Protecting Family Caregivers from Discrimination Act would be enforced by the Equal Employment Opportunity Commission (“EEOC”), and violations would requireproof of disparate treatment by an employer or the disparate impact of an employer’s policies on a caregiver employee. An employee alleging discrimination under this Bill would have a private right of action against his or her employer without being required to file a charge through the EEOC or exhaust any other administrative remedies first.

Primary caregiver discrimination has long been an inadequately addressed problem in our work force, with advocacy groups, research centers, and legal projects fighting for appropriate protections for decades. This legislation is supported and endorsed by many of those groups, including the Center for WorkLife Law, National Employment Law Project, the National Alliance for Caregiving, the Caregiver Action Network, Caring Across Generations, the National Women’s Law Center, A Better Balance, National Partnership for Women & Families, The Arc of the United States, and the National Domestic Workers Alliance.According to a report from the Center for WorkLife Law at the University of California-Hastings, the number of employees reporting caregiver discrimination in the workplace increased almost four-fold from 2005 to 2015. The Center for WorkLife Law also reports that 60% of caregiver employees suffer retaliatory action from employers for having family responsibilities, including reduced hours and negative performance reviews. As of 2020, the American Association of Retired Persons (AARP) found that 53 million Americans care for their dependent family members and 61% of them do so while working at a full-time job.

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.

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.

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.

Many businesses and schools have or will be closing due to the Corona-Virus.  While some New Jersey workers can still perform their job duties and responsibilities from home, others cannot and will be temporarily or permanently separated from their employment.  For those people who are separated from their employment for COVID-19 related reasons, there are various local, state or federal governmental run programs that provide for paid benefits to impacted workers.  For New Jersey employees who find themselves unemployed due to COVID-19, they two programs that could provide for temporary relief are New Jersey Unemployment Insurance and the “Emergency Paid Leave Act of 2020” program  that was passed into law late Friday night.

IMG_3667-300x169New Jersey Unemployment Insurance Law provides for unemployment benefits for employees who are separated from their work due to no fault of their own.  Employees who are unable to perform their job duties and responsibilities at home during a Corona-Virus related business closing may be eligible to collect unemployment benefits if they meet all other eligible requirements, including the minimum earnings requirement.  Benefits under the New Jersey Unemployment Insurance program are available up to 26 weeks per year.  Eligible employees are paid 60% of his or her average weekly wage earned during the base year, with a maximum week benefit up to $713.  The current maximum total benefit for one worker to receive is $18,538 for 26 weeks of unemployment.

Workers who become eligible to receive unemployment benefits are required to be show they are (1) able to work; (2) actively seeking work; (3) available for work: and did not refuse any offer of suitable work.  While securing a new job during the Corona-Virus pandemic could prove very difficult, any person collecting unemployment benefits should still actively seek for work during their period of unemployment.  This includes applying for any open and available jobs and keeping all documentation to prove he or she conducted a diligent job search efforts should the Department of Labor request the information relating to the job search.

It is unknown how many workers across New Jersey will fall ill with COVID-19 or be quarantined as a result of a Coronavirus exposure. Many school districts across New Jersey have already closed, with more anticipated to be closed imminently.  Many New Jersey working families will need to take FMLA or other form of leave from work as a result of a family member or themselves for contracting COVID-19, or simply to care for children not in school.

IMG_3668-300x169The New Jersey Paid Family Leave Insurance provides for benefits for up to 6 weeks to provide care for a seriously ill or injured family member diagnosed with COVID-19. In order to be eligible for Family Leave benefits, a New Jersey worker would have to had paid into the system and meet the minimum gross earnings requirements.  New Jersey workers must have worked 20 weeks and earned at least $200 per week, or have earned a combined total of $10,000 in the base year. Eligible workers are currently paid 2/3 of their average weekly wage with a maximum of $667 per week. However, starting July 1, 2020, eligible workers will be paid 85% of their average weekly wage with a maximum of $881 per week.  The New Jersey Paid Family Leave Insurance law is different from the New Jersey Family Leave Act, which provides eligible employees with job protection for qualifying reasons such as child birth or to care for a family member who is suffering from a serious health condition.

If a New Jersey employee tests positive for COVID-19 or has symptoms consistent with COVID-19 and is unable to work, there are several possible state programs under which he/she may be eligible.  The employee may use accrued Earned Sick Leave. All employers, regardless of size, must provide employees with up to 40 hours of earned sick leave per year to care for themselves or a loved one. Earned Sick Leave time may accrue as you work at a rate of one hour per 30 hours worked, or, your employer may give you a “bank” of 40 hours at the beginning of the year. A New Jersey worker exposed to Coronavirus during the course of their work and directed to quarantine as a result may also use Earned Sick Leave during the quarantine period. Earned Sick Leave is also available to employees who are unable to work because their child’s school or daycare was ordered closed by a public official.

Governor Phil Murphy has signed into law several bills that will significantly expand protections for New Jersey workers. The new legislation includes a package of bills that aim to protect the rights of workers who have been misclassified as independent contractors.  The new law provides for penalties against employers who misclassify their workers as independent contractors instead of employees.

IMG_3012-300x176The punitive aspect of the new law aims to encourage employers to appropriately designate employees as such, and therefore affording them the legal protections provided to employees under various state and federal employment laws. However, this controversial bill has sparked much debate regarding the future of workers in the “gig” economy. Opponents of the law contend that the new law will create significant financial burdens on businesses who will then in turn refuse to employ these workers.

New Jersey employment law distinguishes between two types of workers: employees and independent contractors. While regular employees enjoy and have access to wage theft protections, overtime pay, workers’ compensation, unemployment benefits, sick and family leave, health and safety, and anti-discrimination protections, independent contractors receive no such benefits. Historically, employers were required by law to pay tax contributions on employee’s wages only, and not those of independent contractors. This resulted in a scenario where it is enticing for employers to classify, and perhaps even misclassify, workers as independent contractors under any circumstance. The new legislation aims to combat such conduct and improve protections for misclassified workers.

On February 19, 2019, Governor Phil Murphy signed into law an extensive expansion of New Jersey’s paid Family Leave Insurance program and amends the New Jersey Family Leave Act. The New Jersey paid family leave program, which is about 10 years old, provides employees with paid leave for qualifying reasons to care for a newborn, adopted child or sick relative.  The New Jersey Family Leave Act, which was adopted in 1989, provides for eligible employees the right to take up to 12 weeks off from work in a 24 month period in order to care for a family member who is suffering from a serious health condition or upon the birth or adoption of a child.The new expansion of the paid family leave law extends paid benefits to eligible employees from six weeks to twelve weeks.  The new law will also make the benefits payable at a higher rate. Currently, benefits pay out two-thirds of an employee’s pay, capped at $633 per week. The enhanced benefits will entitle eligible workers to 80% of their wages, up to $860 per week. Further, the law was also expanded with regard to intermittent leave, increasing the entitlement from 42 days to 56 days, beginning July 2020.

In 2008, New Jersey followed in California’s footsteps and became the second state to enact paid family leave. Unfortunately, awareness of the program and its benefits has not been widespread. A 2017 study showed that only 12% of New Jersey’s eligible new parents were receiving family leave benefits. The recent enhancements signed by Governor Murphy were previously vetoed in 2017 by then Governor Chris Christie, who stated that such an expansion would be too expensive for New Jersey workers to bear.

The amendments will also change the New Jersey Family Leave Act by providing job protections to employees of private businesses that have at least 30 employees.  This change in the New Jersey Family Leave Act will become effective as of June 30, 2019.  This change represents an expansion over the old law, which only provided protections to employees of private businesses with at least 50 employees.  The program is funded through payroll deductions paid by every single New Jersey employee.  As of January 1, every New Jersey worker is contributing based on their initial $34,400 in wages, for a maximum contribution of $27.52 per year.

Contact Information