SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

New Jersey Legislature Releases Proposed COVID-19 Employment Protections

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)

Across the State, a common response to the Coronavirus has been to limit or eliminate social interaction and large gatherings. This has been accomplished by canceling or postponing events, sending employees home to work remotely, and sending children home from school to learn remotely. While canceling work or school may be the best means to stop the Coronavirus’ spread, it creates financial burdens for those impacted.

This bill is designed to address that burden.  As the “Background and Analysis” section of the Legislature’s proposal states, “the intent of this bill is to allow workers affected by COVID-19, who do not have access to paid sick leave or other programs that would prevent them from losing income have access to monetary relief through a Temporary Lost Wage Unemployment Program.” This program would be funded by a $10 million dollar appropriation, to be used to pay the lost wages claimed by impacted workers.

This bill applies to all New Jersey employees who suffer lost wages for one of the qualifying reasons set forth in the bill. Specifically, an employee qualifies to participate in the program if they are absent from work because: (1) they are caring for a family member infected with the Coronavirus; (2) they themselves are infected with the Coronavirus; or (3) they need to take care of their child whose school or childcare facility is shut down. Additionally, there is a catch-all provision stating that an individual may qualify “for such other purposes as determined by the commissioner.”

If an employee suffered lost wages and qualifies under one of the above criteria, they have to file a claim for those wages within three months of the end of the state of emergency that is currently in place due to the Coronavirus. If an employee makes a willful misrepresentation or omission in making such a claim, they face up to a $10,000 fine to for filing a false claim.

“Paid Leave for Local Government Employees” (A-3847)

Medical leave is a critical employment benefit that, at the very least, allows an employee to miss work without risking their job security. In many cases, however, this leave is unpaid which can place a significant financial burden on the employee and their family.  At least for local government employees, this proposed bill would ensure that they can take leave related to the Coronavirus without losing their paycheck or any of their accumulated leave time.

In order to qualify for paid leave under this proposed bill, the local government employee (or a family member under that employees’ care) must be: (1) diagnosed with COVID-19; (2) directed by a medical professional or government agency to self-isolate or quarantine due to suspicion of exposure to or diagnosis of COVID-19; (3) undergoing a period of self-isolation or quarantine pursuant to public health assessment recommendations; or (4) staying home to care for a child whose school or childcare program is closed due to COVID-19.

If any of these criteria are met, the employee is eligible for paid leave, provided that the employee provides documentation verifying their eligibility within three workdays of their initial absence. As noted above, eligible employees who provide this notice would not be required to utilize accumulated leave time, and any absences taken pursuant to this proposed bill would not be the subject of any disciplinary process regarding excessive absenteeism or abuse of sick leave. The New Jersey Department of the Treasury will reimburse any political subdivision for the wages paid to employees who take leave pursuant to this proposed bill.

“Time Off from Work in Connection with Infectious Diseases” (A-3848)

When an employee takes medical leave pursuant to some employment law statutes (like the FMLA and the NJLAD), they are protected against being terminated for taking such leave. This protection does not necessarily exist for employees who take leave due to illness, where that illness does not rise to the level of a disability. This proposed bill addresses that gap, providing protections against retaliation for any employees who requests or takes time off from work due to infectious illness, in certain circumstances.

In order for to obtain protection under this proposed bill, an employee must either have or is likely to have an infectious illness and which may be passed to others at the employees workplace. In order to verify that an employee meets this criteria, the bill requires the employee to present their employer with a written statement from a licensed medical provider so stating. Additionally, this statement must provide a recommendation that the employee not go to work, and this recommendation must be for a specified period of time.

Under the proposed bill, if an employee requests time off and provides such a statement, the employer would be foreclosed from terminating the employee for making the request, and further foreclosed from refusing to reinstate the employee following the end of their specified leave time. Where an employer ignores this prohibition, the employee would be entitled to file a complaint with the Commissioner of Labor and Workforce Development (“commissioner”) or to file a lawsuit, to be reinstated without any reduction of their employment benefits. Additionally, the employer would be subject to a fine by the Commissioner of $2,500 dollar per violation.

CONCLUSION

These bills each address important employment issues and provide much-needed relief for employees grappling with them. Unfortunately, many employees are not protected by these bills despite also grappling with similar concerns. Employees who asymptomatic but want to self-quarantine in order to advance the public health would not be entitled to lost wage assistance under A-3846, nor are they entitled to job protections under A-3848. Non-governmental employees are not entitled to paid leave under A-3847. Notwithstanding these shortcomings, these proposed bills are a vital first step to addressing the impacts the Coronavirus pandemic is placing on New Jersey employees.

Our office will continue to monitor this bill and other relevant Coronavirus related-employment legislation.  If you have questions about how these proposed bills that will impact your employment, or about how the Coronavirus pandemic has impacted other employment rights or protections, the employment lawyers at Smith Eibeler are here to help. Our offices will be closed but our employment attorneys will be working remotely and are available for telephone, email and/or video conferencing.