On March 9 and 13, 2020, the Governor of the State of New Jersey and the President of the United States declared a State of Emergency and National Emergency in response to dangers posed by COVID-19. Then, on March 16, 2020, the Governor of New Jersey issued an Executive Order announcing “Aggressive Social Distancing Measures to Mitigate Further Spread of COVID-19 in New Jersey,” which requires many businesses to shut down altogether or otherwise limit their operations. County and local governments in New Jersey and other states have implemented additional measures of varying degrees in their efforts to slow the spread of COVID-19. These national, state, and local declarations have caused significant uncertainty for employers across the State.
While the emergency declarations give the government the authority to suspend the enforcement of certain laws, employers must be mindful of the myriad laws that continue to govern their relationship with employees. Indeed, employers must be even more aware of their obligations (and their rights) and ensure on-going compliance with relevant federal and state laws. Employers must also stay up to date with public health advice and information and must make reasonable assessments of workplace conditions based on the most updated information available. Employers who rely on federal and state guidance can protect themselves against allegations that they failed to take reasonable steps to protect their workforce and that they engaged in discriminatory conduct.
Following are answers to many questions frequently asked by employers (and some questions that employers should be asking).
Because this situation is fluid, additional changes are likely to come in the next days and weeks. Therefore, it is necessary to consult with counsel to address specific issues that may be impacting your workplace.
Questions and Answers
Are there federal or state guidance documents that I should be reviewing?
Yes. The following documents have been made available by public agencies to assist employers in navigating through these times:
- CDC guidelines for employers: https://www.cdc.gov/coronavirus/2019-ncov/community/guidancebusiness-response.html
- CDC risk assessment guidelines: https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html
- OSHA guidance for employers preparing for COVID-19: https://www.osha.gov/Publications/OSHA3990.pdf
- World Health Organization guidance and protocols: https://www.who.int/emergencies/diseases/novel-coronavirus-2019
- EEOC’s pandemic preparedness guidelines for employers: https://www.eeoc.gov/facts/pandemic_flu.html
- U.S. DOL’s COVID-19 and the FLSA and FMLA: Questions and Answers: https://www.dol.gov/agencies/whd/flsa/pandemic; https://www.dol.gov/agencies/whd/fmla/pandemic
- NJ CSC COVID-19 guidelines (for civil service jurisdictions): https://nj.gov/csc/COVguidelines.FINAL.pdf
Can I instruct certain employees to stay home from work?
Yes. In fact, the CDC recommends that employers advise employees not to come to work if:
- They have been diagnosed with COVID19, or have had contact with anyone who has been diagnosed with COVID-19.
- They have been asked to self-quarantine by any doctor, hospital or health agency.
- They have travelled to countries with a Level 3 or higher travel advisory in the past 14 days.
- As of March 17, 2020, those countries include: China, Iran, South Korea, Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City, England, Scotland, Wales, Northern Ireland, Republic of Ireland.
- They reside or have had close contact with someone who has travelled to one of the countries listed above within the last 14 days or reside or have had close contact with someone who has been asked to self-quarantine.
- They have symptoms of acute respiratory illness (e.g., cough and/or shortness of breath).
- The CDC recommends that these employees stay home until they are symptom- and fever-free for at least twenty-four hours without the use of fever-reducing or other symptom-altering medications.
Can I send an employee home from work if I believe he or she is displaying symptoms of COVID-19?
Yes. The CDC’s guidelines state that employees who exhibit symptoms should leave the workplace, and employers should consider sending home any other employees who have had close contact with the affected employee until it is confirmed that the employee does not pose a risk to the workplace.
Can I take my employees’ temperatures or undertake additional action to see whether they may be infected?
Yes. Generally, the Americans with Disabilities Act prohibits employers from requiring medical examinations unless: (1) the exam is job-related and consistent with business necessity; or (2) the employer has a reasonable belief, based on objective evidence, that the employee poses a direct threat to the health or safety of others in the workplace that cannot be reduced by a reasonable accommodation.
The EEOC’s position is that COVID-19 now qualifies as a “direct threat” because the CDC and state and local health authorities have acknowledged community spread of COVID19, which allows employers to require such testing.
If I learn that an employee has been diagnosed with COVID-19 or has come in contact with someone diagnosed with COVID-19, can I notify the rest of the workforce?
Yes and no. You can advise employees that they may have been exposed to COVID-19, but you cannot release the name of the individual who tested positive unless that employee gives permission to share his or her name. Employee health information must be kept strictly confidential in the workplace.
What are my obligations to the rest of my employees if I learn that an employee has tested positive for COVID-19?
Upon learning that an employee has tested positive for COVID-19, or even that the employee is presumptive positive awaiting a test result, it is imperative that employers take reasonable steps to protect the rest of the workforce. At a bare minimum, such steps are likely required under OSHA’s General Duty Clause, which requires all covered employers to furnish each employee with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Exactly what steps should be taken upon learning that an employee has tested positive for COVID-19 will depend on many factors, including the type of industry, the nature of the work performed by the employee and coworkers, and workplace configurations, among many others. Measures should include at a minimum sending the infected employee home, isolating and sending home anyone known to have been in “close contact” with the employee, conducting an interview of the infected employee to identify additional employees who may have been in “close contact” so they too can be sent home and selfquarantined. While the CDC defines “close contact” as being within six feet of a COVID19 case for a prolonged period of time or having direct contact with infectious secretions, workplace configurations (e.g., shared desk space, telephone, keyboards) and the type of work being performed may require a broader definition.
Can I prohibit my employees from traveling on their free time?
Generally, no. An employer cannot prohibit otherwise legal activity outside of the workplace. However, if an employee travels to a restricted location, the employer may prohibit the employee from returning to the workplace for a certain period of time.
Am I required to allow my employees to work from home?
No. However, the CDC recommends that employers determine whether it is feasible to use work-from-home or alternative work schedules to minimize the risk of the spread of COVID-19.
For public entities covered by Civil Service regulations, the CSC permits implementation of alternative workweek programs and/or adjustment of daily or shift hours without notifying the CSC chair.
Do I have to pay my employees for the time they are out of work?
It depends. If an employee is performing work from home, even if they are not supposed to be working, that employee should be paid for the time worked. With increased remote-work capabilities, employers must be mindful of and pay for the work actually performed by their employees (including overtime – even unauthorized overtime). For hourly employees, employers should implement policies and/or procedures for the employees to accurately account for the hours worked at home to ensure they are compensated appropriately. Regardless of a work-at-home arrangement, the law still requires employers to maintain accurate time records for non-exempt employees.
Further, if an exempt employee works any part of the week, the employer must pay the employee for the full week. Failure to do so may result in the employee losing his or her exempt status. The employer may, however, require the employee to use paid time off for the days she is not in the office.
For both exempt and non-exempt employees, since October 2018, employers in New Jersey have been required to provide their employees paid sick leave. While the law uses the word “sick,” the permitted reasons to use the leave go beyond an employee’s own illness. Under New Jersey law, employees must be permitted to use sick leave benefits for the following relevant reasons:
- Diagnosis, care, or treatment of, or recovery from their or a family member’s mental or physical illness, injury, or other adverse health condition, including preventative medical care.
- When the employer’s workplace or the employee’s child’s school or childcare is closed by order of a public official due to an epidemic or other public health emergency.
- When there is a public health determination that the employee’s or a family member’s presence in the community would jeopardize the health of others.
Importantly, “family member” is broadly defined to include “any individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship.”
Therefore, employees – even ones who are not sick – who have to take time off because the Governor closed all of New Jersey’s schools or because they are on mandatory quarantine – even if they have not been diagnosed with COVID-19 – must be allowed to use their paid sick leave.
Additionally, the U.S. House of Representatives passed the “Families First Coronavirus Response Act” which, if passed by the Senate and signed into law by the President, would require all private employers with fewer than 500 employees to provide 80 hours of paid sick leave to full-time employees who are: (1) in self-isolation because of a COVID-19 diagnosis; (2) obtaining diagnosis or care, if experiencing COVID-19 symptoms; (3) complying with a recommendation or order of a public official or doctor because the employee has been exposed to COVID-19 or is exhibiting symptoms; (4) caring for a family member who is self-isolating; or (5) caring for a child whose school or childcare has been closed due to COVID-19.
The rate of pay would depend on whether the employee is self-isolating or caring for another. Notably, if signed into law, this additional leave would be added to any current leave available to the employee. In New Jersey, impacted employees would have, at minimum, 120 hours of paid leave.
Note that the New Jersey CSC has issued guidance for State employees, which grants paid time off under certain conditions without the need for employees to use their own accumulated paid time off. The New Jersey Legislature is considering legislation that would extend the CSC’s guidance to other public employers in New Jersey.
Of course, many employers have established their own paid sick leave and other Paid Time Off policies. Those policies should continue to be followed in accordance with their terms.
What if my employees have already exhausted their sick time? Do I have to pay them?
No, generally, you are not required to pay your employees for additional time they are out of work.
Depending on the circumstances, your employees may be eligible for public benefits, including unemployment benefits (if there is a temporary layoff or other covered period of unemployment) or temporary disability benefits (if the employee remains ill after exhausting paid time off). Additionally, if the “Families First Coronavirus Response Act” is signed into law, employers would have to pay 2/3 of the employee’s regular rate of pay under certain leave scenarios.
I am already working on thin margins. Do I have to hold the job of someone who calls out of work during this time?
It depends. State and federal law provides job protection to certain individuals who are on leave to care for their own illness, or the illness of a family member. Those employees must meet the Family and Medical Leave Act (“FMLA”) or Family Leave Act (“FLA”) length of service and hours worked threshold requirements before being legally protected.
If signed into law, the “Families First Coronavirus Response Act” would also amend the FMLA to allow 12 weeks of protected leave for employees who have been employed for at least 30 days under certain leave scenarios related to the COVID-19 pandemic. Under that bill, while the first two weeks of leave could be unpaid (during which employees may use sick leave or other benefits), the remaining time would be 2/3 of the employee’s regular rate of pay.
The New Jersey Legislature is similarly considering a bill that would require employers to reinstate employees who request or take time off from work based on a written recommendation from a NJ licensed medical professional indicating that the employee should take time off because the employee has, or is likely to have, an infectious disease that may infect the workplace.
In addition to legally protected leave, under New Jersey law, employers cannot retaliate against employees for using their paid sick leave time.
Even if an employee is not using otherwise protected leave, if that employee has a reasonable belief that reporting to work would pose an imminent and serious danger to his or her life or health, he or she cannot be retaliated against for voicing those concerns. For certain professions, including healthcare workers, any concerns they raise are likely protected.
Employers should also be mindful of any policies they have (whether or not codified in law) and apply those policies uniformly and in a non-discriminatory manner.
Am I obligated to grant additional leave to “at risk” employees?
Maybe. The ADA and various state analogs require employers to accommodate qualified individuals with a disability. The EEOC and various courts consider additional leave beyond that required under the law and/or provided under an employer’s policy as a reasonable accommodation under certain circumstances. While COVID-19 is likely not considered a disability under the law in light of its transient nature, any underlying health condition rendering an employee as “at risk” may be a disability under the law. As with all accommodation requests, any request for additional leave to accommodate health concerns for “at risk” employees with a disability must be evaluated on a case-by-case basis.
Can I require my employees to provide a doctors’ note regarding their medical condition?
Yes. Employers may request that their employees bring in a doctors’ note; however, that request generally cannot be made unless the employee has been out for more than 3 consecutive days. As a practical matter, however, the CDC recommends that employers suspend their “doctors’ note” requirements during the time of the pandemic.
For certain public employers, employees are required to provide supporting documentation to ensure they remain eligible for paid leave.
Can I require my employees to provide a “clean bill of health” before returning to work following leave?
It depends. Generally, if an employer has a uniform policy that requires employees returning from FMLA or FLA leave to provide a “fitness-for-duty” certification, the employer can continue to apply that policy uniformly. Otherwise, the employer can only request a certification if the employee poses a “direct threat to the health or safety” of himself or herself or others. In deciding whether a direct threat exists, an employer should evaluate the level of risk posed by an individual employee.
It is also exceedingly important that any risk assessment be completed uniformly and in a non-discriminatory manner.
I think I may have to shut down my business, do I have to provide my employees with any notice?
Maybe. If you anticipate shutting down for less than six months then you are not legally required to give notice to your employees under federal or New Jersey law. However, if you anticipate shutting down permanently or for a period that exceeds six months, New Jersey law requires employers with 100 or more employees to give at least 60 days’ notice that operations are going to terminate. In July 2020, the amended NJ WARN Act goes into effect, which will increase the notice period from 60 to 90 days, provide for mandatory severance pay for affected employees and an additional four weeks’ pay for failure to provide the required notice.
Under both the current version of the NJ WARN Act and the amendments taking effect this Summer, there is an exception for terminations “made necessary because of a . . . natural disaster [and] national emergency.” The President’s declaration of a National Emergency, therefore, may provide some relief to impacted employers. But employers must be mindful of the specific reasons for the shutdown, since they may affect whether any exception will apply.
I employ a unionized work force. Are there any additional considerations I should be taking?
Yes. If you are taking action that may impact your employees’ terms and conditions of employment, do not keep the representative unions out of the loop. It is important to speak to union representatives before taking action. The changes you are contemplating will not necessarily require bargaining or negotiations, but failure to advise the impacted representatives may impact the relationship between you and the representative unions moving forward.
Are there additional steps I should take to make sure I maintain a healthy working environment?
The CDC and OSHA have provided significant guidance to ensure workplaces that have to remain open are kept as safe as possible. Examples of steps that should be taken include: performing routine (and increased) cleaning in the workplace; providing disposable wipes for employees; emphasizing hand hygiene to employees; providing soap, hand sanitizer, tissues, and no-touch trash bins; and advising employees to take precautions before traveling, including reviewing the CDC’s Traveler’s Health Notices.
As addressed above, the COVID-19 pandemic is a fluid situation and the resulting labor and employment issues will be difficult to address.
O’Toole Scrivo, LLC handles a wide range of labor and employment matters, including compliance and risk mitigation efforts, and is uniquely equipped to address how the COVID-19 pandemic will impact your company and to help you navigate through these uncertain times.
About O’Toole Scrivo, LLC
We are a carefully crafted mid-sized law firm of recognized subject matter experts practicing primarily in New York and New Jersey. We combine large-firm expertise with small-firm attention to client needs, representing businesses, insurance companies, and government entities. We are committed to delivering creative and timely results for the most high-profile and complex matters.