Beware of No-Fault Attendance Policies

There is a practice that some employers utilize that employees need to understand. It is known as a “No-Fault Attendance Policy.”

These policies provide for automatic discipline, up to termination, after a specified number of absences or “occurrences” within a certain period of time, regardless of the reasons for the absences.

No-fault policies are becoming common because they are easy to implement and they assure a uniform application of policies to all employees. However, there are specific issues that arise when implementing such policies that can violate employee rights.

If the employees’ absence qualifies for leave under the Family Medical Leave Act (“FMLA”) or if it is for a disability within the meaning of the Americans with Disabilities Act (“ADA”), then there are special considerations that must be put into place. The EEOC and the courts have determined that an employer may not apply the no-fault policy to an employee who needs leave that is covered under the FMLA or ADA. Thus, those days off may not count as “occurrences.”

Therefore, if you are terminated for violating a No-Fault Attendance Policy based on legally protected absences, you should consider speaking to an employment lawyer.

New Jersey’s Minimum Wage increases to $12 per hour starting January 1, 2021

The 2021 minimum wage for most employees in New Jersey will be $12 per hour — an increase from $11 per hour in 2020.

The minimum wage for tipped employees is increasing to $4.13 per hour, up from $3.13 per hour in 2020.

There are exceptions to the $12 per hour minimum wage requirement such as employees in “training” seasonal employees, “small” employers (fewer than 6 employees), agricultural workers and direct care staff at long-term care facilities.

In training employees are to receive a “training wage” that is equal to at least 90% of the minimum wage for the first 120 hours of work.

Seasonal employees and small employers with fewer than six employees will have a minimum wage of $11.10 per hour in 2021, up from $10.30 in 2020.

Agricultural workers have a minimum wage of $10.30, which is the same as 2020.

As of November 1, 2020, direct care staff members in long-term health care facilities began to receive a minimum wage that is $3.00 higher than New Jersey’s current minimum wage which brings them to a minimum wage of $15.00 in 2021.

By 2024, the minimum wage rate in New Jersey will reach $15 per hour with a one dollar increase each year.

New York City Expands Paid Sick Leave for Employees

Effective January 1, 2021, New York City is expanding its paid sick leave law. The amendments to the NYC Paid Safe and Sick Leave Law (“NYCPSL”) provide the following:

  • Employers with 100 or more employees must provide up to 56 hours of paid sick and safe leave per calendar year,
  • Employers with 5-99 employees must provide up to 40 hours of paid sick and safe leave per calendar year, and
  • Employers with 4 employees or less must provide paid sick and safe leave if the employer’s net income is greater than $1 million or unpaid sick and safe leave if net income is $1 million or less.

Further, NYC employers are required to note the amount of sick and safe time accrued and used during each pay period as well as each employee’s total balance accrued sick and safe time on each employee’s pay statement.

Sick time is defined in § 20-914a as time for absence from work due to an employee’s or a family member’s mental or physical illness, injury or health condition or need for medical diagnoses, care or treatment of a mental or physical illness, injury or health condition or need for preventative medical care or closure of an employee’s place of business by order of a public official due to a public health emergency or such employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.

Safe time is defined in § 20-914b as time for absence from work due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence.

This expanded sick leave is in effect as the COVID outbreak continues to surge through the winter months. The NYCPSL is broad and includes time off needed to take the COVID vaccine once it becomes available and time off to care for a health condition of the employee’s family member.

Additionally, an anti-retaliation provision was added to the NYCPSL. The anti-retaliation provision is implicated when an employee’s use of NYCPSL is a motivating factor for an adverse employment action. The NYCPSL also permits the NYC Department of Consumer and Worker Protection (“DCWP”) to bring pattern or practice enforcement actions with expanded subpoena and investigative powers, that could incorporate civil penalties for each employee who was not permitted to utilize NYCPSL.

These benefits are on top of the sick leave employers must provide under existing state and federal law.

New Jersey COVID-19 Employment Update: Executive Order 192

The Covid-19 outbreak continues to lead to new laws and regulations in the workplace. The most recent is Executive Order 192, issued by New Jersey Governor Phil Murphy which took effect on November 5, 2020. This Order requires employers with employees who are physically present at a workplace to adhere to strict safety requirements.

The Executive Order provides that every business, non-profit organization and governmental and educational entity must:

  • Require that individuals at the worksite maintain at least 6 feet of distance from one another to the maximum extent possible.
  • If the nature of the work does not allow for 6 feet of distance, employers must ensure that each such employee wears a mask and must install physical barriers between workstations wherever possible.

Two important measures included in the Executive Order are that the employer must:

  • Exclude sick employees from the workplace and follow requirements of applicable leave laws; and
  • Promptly notify employees of any known exposure to COVID-19 at the worksite.

Governor Murphy along with the New Jersey Department of Health and the Department of Labor and Workforce Development put these standards in place and have created a “COVID-19 Worker Protection Complaint Form” available on the New Jersey Department of Labor website, where you can anonymously report unsafe conditions.

Can you be fired for having to quarantine?

An issue facing employees right now is the technicalities related to returning to the workplace. For employees who are back at work, it is unsurprising that situations may arise where the employee is exposed to COVID-19, a family member has COVID-19 or they themselves may catch the virus whether at work or elsewhere. Now the issue becomes, what does the employer do for the 14 days or so that their employee is mandated to stay home? The short answer is that an employer cannot simply fire an employee who has to be out of work due to having to quarantine.

New Jersey Law prohibits COVID-19 related employment discrimination. Under Executive Order 103, Governor Murphy specified that an employer cannot terminate or refuse to reinstate an employee who has or is likely to have an infectious disease that requires the employee to miss work. The employee is also protected from retaliation or penalty for requesting time off for having to quarantine.

In New York, Governor Cuomo enacted the COVID-19 Quarantine Leave Law, the COVID-19 Paid Sick Leave Law and expanded New York’s Paid Family Leave Law (PFL) and Disability Benefit Law. These laws require New York employers to provide job-protected sick leave to employees who are subject to a mandatory or precautionary order of quarantine.

Further, the Families First Coronavirus Response Act (FFCRA) is a federal law that went into effect on April 2, 2020 which provides extended coverage for employees who need to take leave because of COVID-19 by amending the Family and Medical Leave Act of 1993 (FMLA). The Emergency Family and Medical Leave Expansion Act expands coverage to most employees who have to quarantine.

What if my employer violates one of the above provisions?

If your employer fires you for having to quarantine due to COVID-19, there are a few courses of action you can take:

In New Jersey, you have the option to file a claim with the New Jersey Department of Labor and Workforce Development, where they will conduct an investigation and then determine if you should be reinstated to your position and if your employer should be penalized. Alternatively, you could file a lawsuit in the New Jersey Superior Court. Claims filed with the Department of Labor and Workforce Development will be processed in the same manner as claims for wages filed with the Division of Wage and Hour Compliance. There will be a hearing conducted by a Wage Collection Referee and the employer and other witnesses may be required to provide a testimony. The Wage Collection Referee can issue a decision and provide remedies. If the results of the investigation find that the employer acted in violation of any of the COVID-19 laws, the employee may be reinstated, and the employer faces a monetary administrative penalty.

In New York, you may file a claim with the New York State Department of Labor who will conduct an investigation.

Under the FFCRA, Employers in violation of the provisions are subject to the enforcement provisions as well as penalties under the Emergency Family and Medical Leave Act. The employer can be liable for compensatory damages (back pay, lost benefits, front pay, and emotional distress) as well as liquidated damages (double damages), attorneys’ fees and expenses, pre- and post-judgment interest, injunctive relief, and reinstatement.

Lastly, throughout the pandemic, many employers have improved their remote work systems and have allowed their employees to work from home if need be. It is important to familiarize yourself with your employers work from home policy just in case you find yourself in a situation where you must quarantine.

Third Circuit Revives Americans with Disabilities Act (ADA) Suit Over Faulty Disability Analysis

The federal Americans with Disabilities Act (ADA) provides employees and job applicants protection against employment discrimination who: (1) have a disability; (2) have a record of a disability; or (3) are regarded as having a disability.

The Third Circuit recently revived a truck driver’s ADA suit alleging Patrick Industries fired him for taking medical leave to recover from a lung biopsy procedure, saying a lower court fumbled its analysis of whether he was “regarded as” disabled under anti-discrimination law.

William Eshleman took two months of medical leave for a lung biopsy procedure and, six weeks after his return, took two vacation days for an upper respiratory infection. Following the second return, the employer fired him and offered shifting reasons for his termination.

Eshleman sued, alleging the company regarded him as an individual with a disability and fired him on that basis. A federal district court dismissed his claim, finding that his impairment was not eligible for coverage under the law’s “regarded as” prong because it was “transitory and minor.”

On appeal, a three-member panel said the district court improperly dismissed the suit because it only evaluated the “transitory” nature of his surgery to remove a nodule from his lung, but didn’t separately consider whether it was “minor,” as required. Minor means “objectively non-serious.”

Courts must evaluate whether an impairment is expected to last fewer than six months and analyze if it was minor in order to determine an employee’s ability to meet the “regarded as” element of the definition of disability under the ADA.

“While the statute is silent on the meaning of ‘minor,’ the ADA regulations clearly state that an employer must establish that the perceived impairment is objectively both transitory and minor,” Circuit Judge Theodore McKee wrote for the panel, adding that “‘transitory’ is just one part of the two prong ‘transitory and minor’ exception.”

This new Eshleman decision will pave way for the expansion of ADA suits in the Third Circuit.

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

SCOTUS says LGBT Discrimination in the Workplace Violates Federal Law – What Does That Mean for New Jersey and New York Workers?

In a highly anticipated decision, the U.S. Supreme Court has declared that Title VII of the Civil Rights Act, which is the federal law that bans certain forms of employment discrimination, applies to LGBT workers. In New Jersey and New York, LGBT workers have been protected by state laws against discrimination for many years. This latest development, however, may give certain worker important additional options.

The Supreme Court case was actually a consolidation of three cases from the lower courts. In one, a county government employee in Georgia was fired shortly after he joined a softball league for gay men. In a second, a skydiving instructor in New York was fired shortly after his employer discovered he was gay. In Michigan, a funeral home fired a trans woman who after six years on the job announced her intention to begin, as part of her transition, dressing in accordance with the employer’s rules for female attire.

All of these situations, according to the court, represented impermissible forms of sex discrimination under Title VII. The majority opinion stated that an “employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision exactly what Title VII forbids.”

The U.S. Supreme Court held that the ban on sex discrimination in the federal employment law, Title VII of the Civil Rights Act of 1964, covers employment discrimination based on sexual orientation or transgender identity.

The Court’s decision will have significant consequences in the majority of states, which do not include anti-LGBT discrimination protections as part of their state-level employment discrimination laws.

For employers in New Jersey and New York, the Supreme Court’s decision may not have much practical effect as the New Jersey Law Against Discrimination (NJLAD) and New York State Human Rights Law already prohibit employment discrimination based on sexual orientation and gender identity. The decision may, however, shift some litigation from state to federal courts.

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

U.S. Department of Labor Issues Guidance on Employee Leave Rights When Summer Camps and Programs Close Due to COVID-19

In response to the COVID-19 pandemic, many employees sought time off work under the paid sick leave or paid family and medical leave provisions of the Family First Coronavirus Response Act (FFCRA) to care for children at home because their schools or day care centers closed. As the end of the school year approached, many summer schools or camps cancelled programming. Others remain in limbo, awaiting governmental clearance and guidance to resume operations during the phased “re-opening” of the economy. All of this leaves parents and their employers questioning whether FFCRA provides leave when parents need to care for children at home because of closed summer camps or educational programs.

On June 26, 2020, the U.S. Department of Labor (DOL) issued guidance stating that FFCRA leave is available when a parent is unable to work or telework because a “place of care” is closed due to COVID-19-related reasons. The guidance further notes “place of care” means “a physical location in which care is provided” for a child, and this “includes summer camps and summer enrichment programs.”

Criteria for Coverage

Coverage exists where children were enrolled before a program closed. Recognizing that the uncertainties surrounding the pandemic resulted in camps or programs not taking enrollments, the guidance states coverage exists when a child attended a closed program in prior summers and was eligible to again participate this summer while also noting “there may be other circumstances that show an employee’s child’s enrollment or planned enrollment in a camp or program.”

The guidance provides that a parent’s mere interest in a camp is not enough; it must be “more likely than not” the child would have participated in the underlying program. Evidence of planned participation cited in the guidance includes eligibility for participation, submissions of applications or payments of deposits toward such programs; however, the guidance makes clear there is no “one-size-fits-all” rule.

The guidance also clarifies the type of information parents must provide employers to support such leave requests:

  • “An employee who requests leave to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program is subject to the same requirements [as leave due to closures of schools or day cares] and should provide the name of the specific summer camp or program that would have been the place of care for the child had it not closed.”
  • In addition, parents should provide a statement affirming that no other suitable person is available to care for the child.

An employer who improperly denies such leave could be subject to a DOL enforcement action or even a private suit.

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

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.