Employment Litigation In The Wake Of The COVID-19 Pandemic

The COVID-19 pandemic has triggered a drastic shift in the employment landscape that may result in a wave of litigation alleging employers violated existing labor laws and the recently enacted coronavirus leave law.

While employees in the greater New York and New Jersey area have legal protections under local, state, and federal law, employment-related disputes are not uncommon. Though the regional economy remains under lockdown more or less, the new normal may see an increase in certain types of employment litigation, such as:

A. Wage And Hour Claims During The COVID-19 Crisis

Regardless of the pandemic, non-salaried workers in New York and New Jersey are entitled to the state’s current minimum wage as well as overtime for all hours worked over 40 per week.

While traditional tracking mechanisms allow employers to determine when workers start, take lunch breaks, leave for the day, etc. are no longer in use, businesses that have not adapted to track clock worker hours offsite could face wage theft claims by workers alleging they worked through breaks. Despite the COVID-19 crisis, employers must be mindful of their obligations under the federal Fair Labor Standards Act (FLSA) and applicable state labor law.

If when businesses begin to re-open, employers may also face potential liability if they require workers to take certain precautionary measures before entering the premises (such as temperature checks) or donning personal protective equipment prior to starting a shift. These activities may be construed as off-the-clock work for which employees must be compensated.

B. Paid Sick Leave Disputes During The Coronavirus Outbreak

The Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide them with a certain amount of paid time off for COVID-19-related reasons, such as falling ill or caring for a child whose school has closed.

Employers in New York and New Jersey have a legal obligation to determine which employees are eligible and then provide them with the proper amount of paid leave time. Businesses can face lawsuits for: a) Unfairly denying paid leave; b) Miscalculating pay; and c) Retaliating against employees who request paid leave.

C. Safety (OSHA) Violations As A Result Of The Pandemic

Workers in hospitals, food processing facilities, grocery stores and others on the front lines who contract COVID-19 due to unsafe working conditions face an uphill battle. While the Occupational Health and Safety Act requires employers to ensure that the work environment is safe, the law does not allow workers to sue their employers over unsafe working conditions. Workers who fall ill due to the pandemic may be entitled to worker’s compensation, albeit that proving they contracted the novel coronavirus at work can be difficult.

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

New York City Takes Stand Against Race and National Origin Discrimination Based on Coronavirus Fears

The novel coronavirus has had a devastating impact on New York City and surrounding areas. While the daily number of new cases in New York is decreasing, the virus shows no sign of slowing down in many other parts of the country, even as most states are in the process of “reopening” their economies.

The disease is bad enough by itself, but its supposed origins in China have also led to an unfortunate backlash against people perceived to be of Chinese heritage. Discrimination, harassment, and worse have occurred in workplaces and in public. The New York City Commission on Human Rights (CHR), which works to prevent discrimination on the basis of race, national origin, and other factors, created a response team to address discrimination and harassment related to the pandemic.

Laws Against Race and National Origin Discrimination in the Workplace

The New York City Human Rights Law (NYCHRL) prohibits workplace discrimination based on a person’s “actual or perceived…race…[or] national origin.” N.Y.C. Admin. Code § 8-107(1)(a). This includes terminating someone’s employment, demoting them, denying them shifts or assignments, and other adverse actions, when the sole or primary purpose is that they are a particular race or have a particular national origin.

The coronavirus pandemic involves multiple forms of employment discrimination. The CHR has adopted guidelines from the Equal Employment Opportunity Commission (EEOC) related to disability discrimination.

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

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.

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.

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.