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.

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.

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 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.

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.

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:

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.

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:

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

In a decision that could have national implications for the wage-equity movement, the Third Circuit Court of Appeals ruled that the City of Philadelphia may enforce its law prohibiting employers from asking applicants about their salary history.

The decision upheld the constitutionality of the Philadelphia law under the First Amendment. The Court held that the law infringed, to some extent, on the free speech rights of employers, but it did not violate the First Amendment because it was narrowly tailored to address a substantial government interest.

Proponents of the law, which include the city and women’s advocates, say it would cut down on gender- and race-based discrimination that contributes to the wage gap by keeping unfair salaries from snowballing through an employee’s career. Studies suggest women on average make about 80 cents for every dollar a man does. That gap is even higher for women of color.

If you have any questions regarding Salary History Ban or Salary Discrimination, please contact us at mschley@schleylaw.com

On January 6, 2020, the New Jersey Department of Labor issued Earned Sick Leave Rules that further explain employer responsibilities under the New Jersey Earned Sick Leave Law, which took effect on October 29, 2018.

New Jersey’s Sick Leave Law gives New Jersey employees the right to accrue and use up to 40 hours of paid sick leave (leave) in any period of 12 consecutive months. Employers who violate this law can be subject to significant administrative, civil, and potentially criminal charges.

With a few exceptions, the law covers all full and part-time New Jersey employees. Out-of-state employers with employees in New Jersey must provide leave to its employees who work in New Jersey.

Firstly, these final regulations eliminate the requirement that an employer establish a single benefit year applicable to all employees. The NJDOL explains that an employer may lawfully utilize an employee’s anniversary year as the benefit year for purposes of the leave. Leave hours can be accrued at a rate of one hour of leave for every 30 hours worked, or employers may choose to make the entire 40 hours of leave available to employees at the beginning of the benefit year, as defined by the employer.

Secondly, employees may use accrued leave after their 120th day of employment, for any of the following reasons:

Employers may require employees to submit reasonable documentation if they use leave for three or more consecutive days, or if the employee uses leave for an unforeseeable absence on “certain dates” identified by the employer in advance. The new rules provide examples of acceptable documentation.

A failure to comply with the leave law constitutes a failure to pay wages in accordance with the New Jersey Wage Payment Law. That law requires employer to pay non-exempt employees at least twice a month on regular paydays designated in advance. The requirement applies to any payout of earned sick leave at the conclusion of the benefit year.

If you have questions about time off or sick leave related to your employment, you can contact us at mschley@schleylaw.com.

This is a continuation of our prior blog that discusses the new workplace protections in New York.

1. Restricts Non-Disclosure Agreements.

In 2018, New York State law was amended to limit the use of Non-Disclosure Agreements in connection with the resolution of sexual harassment claims. This limitation now applies to the settlement of all discrimination, harassment and retaliation claims. Specifically, the law precludes the use of non-disclosure agreements that prohibit an individual from disclosing the facts and circumstances of a discrimination or harassment claim, unless: (i) the condition of confidentiality is in the complainant’s best interest; (ii) any such non-disclosure provision is the complainant’s preference and is written in plain English, and if applicable, the primary language of complainant.

2. Hair Discrimination.

The new legislation also prohibits employment discrimination based on religious attire, clothing or facial hair. The new law amends the New York State Human Rights Law to make clear that employers cannot refuse to hire, retain, promote, or take other discriminatory action against an individual for their attire, facial hair or displaying other physical traits (ex: hair texture and braids) in accordance with the tenets of their religion or race. Further, employers are prohibited from treating applicants or employees differently because of that person’s religious beliefs.

3. Salary History Ban.

New York State has also enacted laws prohibiting employers from inquiring about salary history during the process of considering an individual for a job. Employers must not:

a) Rely on an applicant’s wage or salary history in determining whether to offer employment or in determining the wage or salary for such individual.

b) Orally or in writing seek, request, or require an applicant or current employee’s wage or salary history as a condition to be interviewed, as a condition of continuing to be considered for an offer of employment, or as a condition of employment or promotion.

c) Orally or in writing seek, request, or require an applicant or current employee’s wage or salary history from a current or former employer, current or former employee, or agent of the applicant or current employee’s current or former employer.

d) Refuse to interview, hire, promote, otherwise employ, or otherwise retaliate in any manner against an applicant or current employee (i) based on the individual’s prior wage or salary history; (ii) based on the individual’s refusal to provide wage or salary history information; or (iii) based on the filing of a complaint with the Division of Human Rights alleging a violation of this law.

4. Equal Pay protections expanded to all protected classes.

The new legislation also amends the equal pay provisions of the New York Labor Law (NYLL), which currently prohibits gender-based pay inequity, to apply to members of all protected classes under the NYSHRL. Under the new legislation, individuals who believe they are underpaid due to their protected status will be able to bring a claim for equal pay directly under the NYLL. The NYLL has a six-year statute of limitations, which is double the three-year statute of limitations applicable to claims under the NYSHRL, and also provides for triple damages.

Additionally, the new law lowers the burden of proof for an individual claiming an equal pay violation by requiring employers to ensure equal pay for “substantially similar work,” as opposed to “equal” work. However, the law permits a differential in rate of pay if the employer can show that such decision is based on (i) a seniority system, (ii) a merit system, (iii) a system measuring earnings by quantity or quality of production, or (iv) a bona fide factor other than the protected status, such as education, training or experience, which is job-related and consistent with business necessity.

If you have questions regarding discrimination, harassment or any other aspect of labor and employment law, feel free to contact Mitchell Schley at 732-325-0318 or mschley@schleylaw.com.