Masks and Face Coverings – What Employees Need to Know

On April 12, 2020, New York State became the largest jurisdiction to impose face-covering requirements in response to the ongoing COVID-19 pandemic. Governor Andrew Cuomo issued an executive order requiring “all essential businesses or entities” to provide “any employees who are present in the workplace” with face coverings to wear “when in direct contact with customers or members of the public,” and specifying that businesses “must provide” such face coverings “at their expense.”

New York thus joined New Jersey, the District of Columbia and numerous other localities in requiring or recommending the use of masks or other face coverings in the workplace and elsewhere in public.

The following are answers to some of the most common questions in this area:

What is a “mask,” and what is a “face covering”?

A mask is usually defined in workspaces as either (i) a filtering respirator such as an N95 or K95 or (ii) a specialized medical grade or surgical mask. In contrast, a face covering is a cloth, bandana, or other type of material that covers an employee’s mouth and nose.

Other types of improvised coverings, such as a scarf or single cloth layer would not be adequate under most orders mandating face covering

Who pays for masks/face coverings?

New York specifically requires employers to provide employees in essential, customer-facing roles with face coverings at the employer’s expense. Similarly, New Jersey requires restaurants, dining establishments and other food service businesses, as well as various public employers, to provide their employees with face coverings and gloves at the business’s expense.

Who does the cleaning and maintenance, and who pays for it?

As the CDC states, multiple-use face coverings should “be able to be laundered and machine dried without damage or change to shape,” generally at least once a day or more often if contamination occurs. Regardless of whether face coverings are governmentally mandated, required by employer policy, or merely recommended, proper cleaning and maintenance are critical to ensure that employees do not reuse dirty or contaminated face coverings, which pose a hazard to other employees as well as customers.

In principle, responsibility for cleaning expenses could vary based on state uniform maintenance rules. For example, under New York State’s Minimum Wage Orders, most employers have the option to either launder uniforms or to pay the employee a set premium to cover cleaning expenses.

What if an employee declines to wear a face covering for medical reasons?

Generally, employers should be providing training to employees at the time that face coverings are distributed or implemented, and the training process should include identification of any medical issues that could interfere with wearing face coverings, such as claustrophobia, asthma, COPD or other conditions. Employers are advised to engage in the interactive process with such employees as required by the Americans with Disabilities Act (ADA) and similar state and local provisions. An employee who cannot breathe through a face covering should not be required to wear one, but may need to be temporarily removed from customer-facing responsibilities, provided with leave or accommodated in some other fashion.

What if an employee declines to wear a face covering for non-medical reasons?

Employee objections should be evaluated in light of all of the relevant circumstances. For example, an employee may raise objections based on religious grounds, where their pre-existing grooming or dress requirements conflict or interfere with prescribed face coverings. In such cases, the employer should engage in the interactive process as required by Title VII and similar state and local provisions.

Individuals who simply decline to wear face coverings, but do not raise a medical or otherwise protected objection, should not be permitted to work and may be disciplined for not following work requirements.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

Discrimination and Retaliation Claims During the COVID-19 Pandemic

While being fired, laid off or experiencing an adverse change to your job during this unprecedented time by itself does not necessarily give you a legal claim, you still have legal rights.

For example, it is unlawful discrimination for your employer to choose to fire or furlough you for an unlawful reason, such as because of your age, race, disability, gender, sexual orientation, pregnancy, religion, national origin, color, marital status, veteran status, or your membership in another legally-protected category.

Similarly, in New Jersey, employers still cannot select you to be fired or have your hours reduced because you objected to, disclosed, or refused to participate in an activity that you reasonably believed violated the law or a clear mandate of public policy. That includes, for instance, prohibiting your employer from choosing to fire you because you objected to a policy or practice that you reasonably believe violates a new law, order, or other state, federal or local requirement relating to COVID-19.

Likewise, employers still must comply with other laws, such as the Family & Medical Leave Act (“FMLA”), the New Jersey Family Leave Act (“NJFLA”), the Worker Adjustment and Retraining Notification (“WARN Act”), the Fair Labor Standards Act (“FLSA”), the Wage Payment Act and the New Jersey the Wage & Hour Law.

New Jersey Attorney General Gurbir S. Grewal and the Division on Civil Rights issued guidance expressly stating that the Law Against Discrimination extends to situations involving COVID-19 in the workplace. The guidance emphasized that employers cannot terminate an individual’s employment based upon a positive diagnosis of COVID-19 or the employer’s perception that the employee may have COVID-19.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

New York Enacts Statewide Paid Sick Leave Law

On April 3, 2020, New York Governor Andrew Cuomo signed into law the fiscal year 2021 New York State budget, which includes a new statewide paid sick leave requirement. The new leave provisions will require New York employers of all sizes to provide a certain amount of paid or unpaid sick leave to be used for certain medical and employee safety-related reasons.

The paid sick leave requirements will take effect on September 30, 2020. However, employees may be restricted from utilizing accrued sick leave until January 1, 2021.

Amount of Sick Leave Available

Under the new sick leave provisions:

  • Employers with 4 or fewer employees and a net income of less than $1 million in the prior tax year must provide employees with up to 40 hours of unpaid sick leave.
  • Employers with between 5 and 99 employees and employers with 4 or fewer employees and a net income of greater than $1 million in the prior tax year must provide each employee with up to 40 hours of paid sick leave per year.
  • Employers with 100 or more employees will provide up to 56 hours of paid sick leave per year.

Employees must accrue sick leave at a rate of at least 1 hour for every 30 hours worked. Alternatively, employers may fulfill their obligation under the law by providing the full amount of sick leave in a lump sum at the beginning of each year.

Unused sick leave carries over to the following year, though employers with fewer than 100 employees may limit the use of sick leave to 40 hours per year and employers with 100 or more employees may limit the use of sick leave to 56 hours per year.

Covered Reasons for Taking Leave

Covered reasons for taking sick leave under the law include:

  • The need for diagnosis, care, or treatment of a mental or physical illness or preventative care of the employee or the employee’s family member; and
  • Certain needs related to the employee or the employee’s family member being the victim of domestic violence, sexual offenses, stalking, or human trafficking, including obtaining services from a domestic violence shelter, rape crisis center, or other services program; participating in safety planning; temporarily or permanently relocating; meeting with an attorney or participating in legal proceedings; enrolling children in a new school; or taking other actions to increase the safety of the employee or employee’s family members

For purposes of this leave, a “family member” includes an employee’s child (including foster child, legal ward, or equivalent legal relationship), spouse, domestic partner, parent (including a step- or foster parent, legal guardian, or equivalent legal relationship), sibling, grandchild, grandparent, and the child or parent of an employee’s spouse or domestic partner.

Use of Sick Leave

The law does provide certain restrictions on the use of sick leave. Specifically:

  • Employers may set a reasonable minimum daily increment for the use of sick leave of no greater than four (4) hours; and
  • Unused sick leave need not be paid out upon an employee’s separation or termination of employment.

Notably, upon return from sick leave, the law requires employees to be restored to the same position as held before the leave with the same pay and terms and conditions.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

UberBlack Drivers’ Classification Case Revived

The Third Circuit recently revived Philadelphia-based UberBlack drivers’ class action claims that Uber misclassified them as independent contractors to deny them proper minimum and overtime wages under the Fair Labor Standards Act and Pennsylvania law.

A three-judge panel vacated U.S. District Judge Michael Baylson’s April 2018 decision granting summary judgment to Uber, saying there is not yet a clear answer to the question of whether UberBlack drivers are employees or independent contractors, so the dispute should be allowed to go to trial.

A company’s control over a worker is a major factor in determining whether an employee or independent contractor relationship exists. While UberBlack drivers set their own schedules and have some ability to select passengers, a judge or jury must determine if Uber still maintains the right to control several aspects of their work and their opportunities for profit.

The decision only applies to UberBlack drivers in Pennsylvania and only has precedential value in the Third Circuit, which includes New Jersey and Delaware. But legal observers say the case could have broad impact, as it may test the fundamental framework of the rideshare company’s workforce model.

Uber has been hit with worker classification lawsuits for years, forcing it to defend its business model that leans on independent contractors. The model, adopted by other gig companies such as Lyft Inc., DoorDash Inc., and Grubhub Inc., allows workers freedoms outside a traditional work arrangement. But as independent contractors, they are not entitled to benefits guaranteed to employees, such as overtime, minimum wage, and workers’ compensation.

According to a Bloomberg study, Uber’s expenses per driver could spike by more than 20% if they have to reclassify them as employees.

While this isn’t a final ruling on the issue, the appellate court made clear that Uber still retains significant control over what the drivers are paid and where they drive to, which could show employee status. Uber determines the fare, the driver’s territory, which driver gets a trip request, whether to refund or cancel passenger fares, and company advertising. The company also can deactivate UberBlack drivers if their passenger-satisfaction rating falls below 4.7 stars and prevent them from accepting rides through other platforms, which weighs in favor of employment status.

Nevertheless, UberBlack drivers own and operate their own independent transportation companies, and can drive as much or as little as they want to, transport private clients, drive for competitors, and strategically use the Uber mobile application to obtain more lucrative trips. Those factors would weigh in favor of independent contractor status.

The forthcoming ruling on this case will impact a number UberBlack drivers in the Third Circuit states, as well as throughout the country.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

COVID-19: FAQs

A. May an employer send home an employee involuntarily who has or is exhibiting symptoms of COVID-19?

Yes. In response to the current COVID-19 outbreak, the Equal Employment Opportunity Commission has cited its 2009 pandemic H1N1 flu guidance, which states that advising workers with symptoms to go home either (a) is not a disability-related action if the illness is akin to seasonal influenza or (b) is permitted under the Americans with Disabilities Act (ADA) if the illness is serious enough to pose a direct threat to the employee or coworkers.

Further, the Centers for Disease Control and Prevention’s (CDC)’s Interim Guidance for Business and Employers advises that employees with symptoms of acute respiratory illness and a fever (greater than 100.4 degrees Fahrenheit) should stay home. Of course, employers should apply this type of policy uniformly and in a manner that does not discriminate based on any protected characteristic (e.g., national origin, gender, race, etc.).

B. May an employer require a return-to-work doctor’s note for an employee to return to work after exhibiting COVID-19 symptoms?

A doctor’s note should not be a prerequisite for returning to work, according to the CDC. This is in part because this requirement would place a high burden on the already burdened healthcare system. If an employee’s situation meets the ADA’s “direct threat” standards, however, an employer may require a return-to-work doctor’s note.

C. May an employee refuse to come to work due to a fear of becoming infected with COVID-19?

Potentially. Employees may be protected from retaliation under the Occupational Safety and Health Act (OSHA) in certain circumstances when they refuse to perform work as directed. Specifically, an employee may refuse an assignment that involves “a risk of death or serious physical harm” if all of the following conditions apply: (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected the hazard through regular enforcement channels, such as requesting an OSHA inspection.”

D. May an employer refuse an employee’s request to wear self-provided respiratory protection and/or gloves?

Yes, if such measures are not otherwise required by the CDC’s guidance or OSHA’s standards, or if the employer determines that the employee’s use of respiratory protection or gloves in and of themselves presents a hazard to the employee (e.g., if they interfere with the employee’s ability to work safely).

The CDC and U.S. Surgeon General state that respirators are not required and are not protective for the general public working in non-healthcare settings. Given that, employers in non-healthcare settings with no infected employees have no need to require respirators.

E. Are there any OSHA requirements that must be followed when an employee is diagnosed with COVID-19?

Yes, in some cases. First, employers must ensure that the infected employee stays away from the workplace. OSHA may cite an employer under the general duty clause if the employer allows or directs a known infected employee to come to work and expose other employees to the risk of infection.

If an employee in the workplace is suspected of having COVID-19 (i.e., someone displaying symptoms of COVID-19), that employee must be quarantined immediately.
Second, employers are required under OSHA’s recordkeeping regulation to record illnesses that are “work related” and meet one of the recording criteria, which include days away from work, job transfer, and medical treatment.

OSHA’s recordkeeping regulation exempts the “common cold and flu” from the recordkeeping requirements. COVID-19, however, is not a common cold or flu. OSHA’s current guidance states that “COVID-19 is a recordable illness when a worker is infected on the job.”

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

Retaliating Against Employees Who Exercise Their Rights in Response to COVID-19

As society continues to traverse the unchartered waters created by the COVID-19 outbreak across the country, federal and state laws have endorsed more protection for employees in these unprecedented times.

At the federal level, employees should be aware that the Company may not retaliate against them, based on the recently enacted Families First Coronavirus Response Act (“FFCRA”). The FFCRA provides certain benefits to eligible employees of covered employers, including requiring paid sick leave under certain scenarios for employees impacted by COVID-19, as well as expanded/enhanced FMLA benefits related to COVID-19 that apply to employers and employees not previously covered by FMLA.

In addition, an employer may not discharge, discipline, or otherwise discriminate or retaliate in any manner against an employee who takes paid sick leave or expanded FMLA leave under the FFCRA, files a complaint or institutes a proceeding under or related to the FFCRA.

Similarly, employees are provided further protection under recently enacted New Jersey state law. On March 20, 2020, New Jersey Governor Phil Murphy signed into law new anti-retaliation legislation with respect to the novel coronavirus, which prohibits employers from discharging, demoting, or otherwise penalizing an employee for requesting or taking time off, based on the recommendation of a licensed medical professional, because he or she has, or is likely to have, COVID-19.

The law also includes a job restoration clause that ensures the employee will be reinstated to the position he or she held when the leave commenced, with no reduction in seniority, status, benefits, pay, or other terms or conditions of employment.

Beyond those specific anti-retaliation proscriptions written into law as a result of the coronavirus pandemic, employees are protected by additional pre-COVID-19 laws application that may be implicated by this crisis, including but not limited to state “whistleblower” protection statutes such as New Jersey’s Conscientious Employee Protection Act (“CEPA”). The act prohibits all public and private employers in New Jersey from retaliating against any employee because that employee has engaged in certain protected activities set forth in the statute.

One significant way in which CEPA may be triggered is if an employer discharges or takes other adverse employment action against an employee who has complained about, objected to, or disclosed (or threatened to disclose) an employer’s practices or activities that the employee reasonably and in good faith believes violate the stringent limitations and restrictions imposed by way of Governor Philip Murphy’s executive order(s), including Executive Order 107, issued on March 21, 2020. Governor Murphy has expressly encouraged and invited employees (and others) to report potential violations of Executive Order 107 to the State’s attention by filing a complaint through the State’s website.

Executive Order 107 requires that all businesses that remain open and operating must “accommodate their workforce, wherever practicable, for telework or work-from-home arrangements,” and further provides that “[t]o the extent a business . . . has employees that cannot perform their functions via telework or work-from-home arrangements, the business . . . should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.”

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

The Families First Coronavirus (COVID-19) Response Act

The Families First Coronavirus (COVID-19) Response Act was approved by the U.S. Senate on March 18, 2020, and has now been signed into law. This bill will provide paid leave under the Family Medical Leave Act, as well as paid sick leave for absences for certain people who have been impacted by the Coronavirus. The law went into effect on April 2, 2020, and will end on December 31, 2020. It applies to all employers with 50 employees or less. You have to be employed for 30 days to be eligible for these benefits. The Families First Coronavirus Response Act provides the following benefits:

Emergency FMLA

Job-protected family leave is provided to employees to take care of a child under 18 years of age who is home because their school or daycare has been closed because of COVID-19.

The first 10 days of this FMLA leave is unpaid. Thereafter, employees must be paid up to two-thirds of their salary, and benefits will vary between full-time and part-time employees. This number is capped at $200.00 per day and $10,000.00 in total for each employee.

Paid Sick Leave

The law provides 80 hours of paid sick leave to full-time employees. Paid sick leave is also available for part-time employees on a pro-rata basis.

The leave can be used because an employee has been ordered by the government or a health care provider to quarantine, if they are seeking medical assistance because of COVID-19 symptoms, if they are taking care of an individual who has been quarantined or ordered to self-quarantine, or if they are taking care of a child whose school or daycare has closed because of COVID-19.

Paid sick leave is to be paid at the employee’s salary with the following caps: $200.00 per day and $2,000.00 total per employee to care for a child or family member; $511.00 per day and a total of $5,110.00 total per employee to care for themselves.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

New Jersey Significantly Modifies the New Jersey WARN Act to Require Severance Pay for Mass Layoffs

On January 21, 2020, New Jersey Governor Murphy enacted major revisions to the New Jersey WARN Act, making New Jersey the first state in the nation to require severance pay for mass layoffs. WARN Act stands for Worker Adjustment and Retraining Notification Act.

The law, scheduled to go into effect on July 19, 2020, will not only require 90 days’ advance notice of mass layoffs or of a transfer or termination of operations—rather than the current 60 days’ notice—but most significantly, New Jersey will now be the first state in the nation to mandate statutory severance pay for all employees who lose their job in a WARN event such as a “mass layoff.”

In addition, the amendments substantially change the methodology for determining whether a WARN event is triggered by (1) eliminating the “one-third” of the workforce threshold for mass layoffs and (2) requiring aggregation of all terminations at all employer worksites within the state, rather than by treating terminations on a site-by-site basis. Further, the law now applies to all employees, not just full-time workers.

Under the law, New Jersey employers will be required to give affected employees 90 days’ notice and severance pay of one week’s pay for every full year of employment, irrespective of whether the employer complied with the state’s WARN Act notice requirements. Where an employer fails to give the required amount of notice, the required amount of severance pay is increased by an additional four weeks’ pay per affected employee. These severance amounts cannot be conditioned on obtaining a release of claims from the employee, and the amounts apply to both full- and part-time employees.

If an employer fails to satisfy its severance obligations, liability can potentially attach to an individual who makes a decision responsible for the employment action that gives rise to the mass layoff, even if that person was not directly employed by the employer.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.

COVID-19 Virus: Your Legal Rights Regarding Time Off

As the COVID-19 virus outbreak spreads across New Jersey, public health experts are advising those who feel sick to stay home. Here’s a look at some of the labor protections available for employees, especially those who cannot afford to miss a paycheck.

Paid Sick Leave

Employees do not need to be sick themselves to use this time off. They can use their earned hours to: stay home if their workplace is closed due to a public health emergency; care for family members; or attend children’s required school-related meetings, etc.

Governor Murphy signed a paid sick leave law that went into effect in October 2018 that allows full- and part-time employees in New Jersey to accrue up to 40 hours of paid sick time off to use at companies of all sizes. The law applies to any person, firm, business, educational institution, nonprofit agency, corporation, limited liability company, or other entity with New Jersey-based employees, including a temporary help service firm. Employers of every size are covered, including employers based outside of New Jersey.It does not apply to unionized construction workers, hospital health care workers who are paid per diem, or public employees who already receive sick pay.

Workers don’t immediately get days off to use. Businesses must provide one hour of paid sick time for every 30 hours an employee works, but a company can advance the time. An employee can start using hours after 120 days of work. Workers can carry over up to 40 hours of sick leave into the next year.

Family Leave

The New Jersey Family Leave Act law allows workers to earn up to 6 weeks of paid time off to care for a sick family member or after having a child. The law applies to companies with 30 or more employees.

Workers can receive up to two-thirds of their paycheck, or up to a maximum of $667 a week. Starting on July 1, 2020, workers will get 12 weeks of paid time off and can receive 85% of their weekly wages up to $881 a week.

Workers can use benefits to care for parents, spouses or civil union partners, children, siblings, grandparents, grandchildren, parents-in-law, any blood relative or someone considered “equivalent” of family. The employee cannot take family leave for his own health condition, and must have worked at this company for at least one year.

Employees also have up to 12 weeks of unpaid family leave under the federal Family and Medical Leave Act if they contracted the virus or need to take care of a family member with the coronavirus. The key difference between the federal law and the state law is that under the federal law employees can take leave for their own illness.

If you test positive for COVID-19, here are some additional options to consider:

  1. Use earned sick leave
  2. Apply for temporary disability insurance: File a claim online at myleavebenefits.nj.gov if you contracted the virus while not at work. Your health care provider will need to report your diagnosis and length of time you would be expected not to be at work.
  3. Did you contract it at work? You may be eligible for workers compensation insurance: If you contract the virus for a work-related reason, like serving someone with the virus at a restaurant, or interacting with a coworker with the virus, you may be eligible for workers’ compensation insurance benefits.

If you have any questions regarding COVID-19 and its effect on your employment, please contact us at mschley@schleylaw.com or at 732-325-0318.

U.s. Department Of Labor Issues
Final Rule On Regular Rate Under The Fair Labor Standards Act

The regular rate determines how much non-exempt employees covered by the FLSA receive in overtime pay, as the Act generally requires overtime pay of at least one and one-half times the regular rate for time worked in excess of 40 hours per workweek.

The Final Rule, which went into effect January 15, 2020, focuses primarily on clarifying whether certain kinds of benefits or “perks,” and other miscellaneous items must be included in the regular rate. Because these regulations have not been updated in decades, the Final Rule will better define the regular rate for today’s workplace practices and will allow employers to more easily offer perks and benefits to their employees.

The newly adopted regulation states that employers may exclude the following when determining an employee’s regular rate of pay:

  • Cost of providing certain parking benefits, wellness programs, onsite specialist treatment, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits (whether paid to an employee, an education provider, or a student-loan program), and adoption assistance
  • Payments for unused paid leave, including paid sick leave or paid time off
  • Payments of certain penalties required under state and local scheduling laws
  • Reimbursed expenses including cellphone plans, credentialing exam fees, organization membership dues, and travel, even if not incurred “solely” for the employer’s benefit; and clarifies that reimbursements that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System or the optional IRS substantiation amounts for travel expenses are per se “reasonable payments”
  • Certain sign-on bonuses and certain longevity bonuses
  • Cost of office coffee and snacks to employees as gifts
  • Discretionary bonuses, by clarifying that the label given a bonus does not determine whether it is discretionary and providing additional examples
  • Contributions to benefit plans for accident, unemployment, legal services, or other events that could cause future financial hardship or expense

If you have any questions regarding overtime pay or compensation, please contact us at mschley@schleylaw.com