SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Articles Tagged with FMLA lawyer

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.

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.

Under the New Jersey Law Against Discrimination (LAD), an employee is entitled to reasonable accommodations at his or her workplace when he or she has a disability and the accommodation allows him or her to carry out basic job functions. But what if the employee requires medical leave to seek treatment for the disability? How long can the requested leave be? What if the employee’s time off under the federal Family and Medical Leave Act (FMLA) has already been exhausted or is unavailable? And how can the employee prove that he or she would still be able to perform basic job functions if the accommodation is provided?

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The Appellate Division of the Superior Court of New Jersey answered these questions in a recent decision in the case of Pritchett v. New Jersey, when it held that leaves of absence are available accommodations under the LAD. In upholding the reasonableness of a request for a 4month extension of a medical leave, the Court determined that even unpaid leave that exceeds FMLA entitlements can be considered a reasonable accommodation, and should be assessed on a case by case basis. Additionally, the Court found that the LAD does not require expert testimony as to the individual employee’s ability to return to work. Such testimony need only attest to the fact that someone with the same disability could potentially function in the workplace.

In 2006, Shelley Pritchett was hired as a corrections officer at the Juvenile Justice Commission (JJC), and within a year, she was promoted to senior corrections officer. As a routine part of her job, Pritchett escorted inmates through and around the prison, responded to codes, and intervened to end physical fights between inmates when necessary. On June 8, 2011, Pritchett broke up a fight among several inmates and injured her neck, back and knee. Due to her injuries, Pritchett took medical leave pursuant to the FMLA until September 21, 2011, exhausting all of her available FMLA leave.

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

The New Jersey Legislature has passed a bill to enhance paid family leave for New Jersey employees. If Governor Phil Murphy executes the bill, New Jersey employees will receive more pay and more time off from work while caring for a newborn or ill family member.  This would mark another significant legislative victory for employees in New Jersey.

Currently, new parents and caregivers can receive up to six (6) weeks of benefits equal to two-thirds of their pay, with a maximum benefit of $633 per week in paid leave benefits. If bill A3975 is passed as it stands, the eligibility period for time off would expand from 6 weeks to 12 weeks, and further would raise the maximum benefit to 85% of wages, with a cap of $859 per week.

In 2008, New Jersey became the second state to adopt a paid family leave policy. The new bill further enhances the originally penned paid family leave as it expands the term “family member” to include siblings, grandparent, grandchild, parent-in-law, domestic partner, or any other individual related to the employee by blood and any other individual the employee shows to have a close association with which is the equivalent of a family relationship.   The definition of “child” is also expanded under the proposed law to include a foster child and a child who becomes a child of a parent pursuant to a valid written agreement between the parent and a gestational carrier.

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