Employer Planning Is Key to Managing Coronavirus Disease

Q.   What should my company be doing to prepare for the spread of the coronavirus?

A.  With the number of coronavirus cases topping 90,000 worldwide, resulting in more than 3,000 deaths across 65 countries, it is only a matter of time before the disease has some impact on normal business operations. However, as the virus continues its march around the globe, there are certain actions companies can take today to mitigate potential disruptions and calm employee nerves.

Communication is key. Employees want concrete answers to questions about employer expectations in the event that the crisis reaches their door. If you haven’t done so already, it would be helpful to issue a policy with, at a minimum, some common sense advice about handwashing, coughing and sneezing etiquette, and sanitizing common areas. Employees should be told to leave work and stay home if they have respiratory symptoms or a fever and companies should communicate this directive to staffing agencies that supply the workplace with temporary or contract workers. Consider placing hand sanitizers in strategic locations and suggesting that employees avoid handshakes.

In addition, employers should ensure that their policies on sick leave are compliant with federal, state and local leave laws. Companies should review these policies with workers so that employees are aware of the consequences, if any, if they are unable to come to work due to their own illness or if they are needed to tend to a sick family member. Companies also need to make sure the appropriate personnel are aware of their obligations to maintain confidentiality under the Americans With Disabilities Act with regard to employees who are sick while working with public health officials to notify employees who may have been exposed to the virus.

There may come a time when the virus reduces the ability of even healthy employees to get to work if, for example, schools and public transportation are impacted. Employers should consider and communicate whether and which employees are permitted to work from home under such circumstances and ensure that employees have the tools they need to telecommute. Companies also should set expectations around such work-from-home arrangements and communicate whether they plan to pay workers who are not able to perform their jobs remotely. In that regard, employers need to keep in mind the rules regarding pay for exempt and non-exempt workers.  Many employees are relaxing their attendance policies temporarily in response to the crisis.

In terms of business continuity, employers will want to cross-train employees to perform critical job functions in the event that certain staff members fall ill. Companies with multiple facilities also will want to cross-train individuals to take over key business functions in the event that one location is impacted more severely than others. Employers also should have a plan in place to identify alternative sources of supply and services required to maintain business operations in the event of increased absenteeism, supply chain interruptions and shortages of raw materials.

Employers also should consider implementing rules around travel, both business and personal. Some companies already have replaced meetings with videoconferences and advised employees to avoid nonessential business travel to high risk areas. Make sure that employees know that they should notify a supervisor or human resources if they become sick while traveling. With spring break fast approaching, some employees may be planning trips domestically and abroad. Many companies are asking employees to disclose their travel plans and imposing a 14-day ban on entering the workplace after an employee has traveled to a high-risk region.  Employers may compel employees to disclose their personal travel plans but should take steps to maintain confidentiality of that information.  Moreover, employers will need to consider off-duty conduct laws in their states if they plan on taking any kind of adverse action based on an employee’s personal travel.

Preparation rather than panic should be your company motto. Thinking through these important issues and memorializing them in a written disease outbreak response plan will help companies protect their workplaces and ensure continuity of operations to the greatest extent possible.

For assistance in drafting a disease response plan, please contact us.

-Tracey E. Diamond

 

New Jersey Expands Employee Family and Safe Leave Benefits

Q:        I heard there are some recent changes to New Jersey’s laws regarding employee leave benefits.  Will they affect my company’s employment policies?

A:        On February 19, 2019, New Jersey Governor Phil Murphy signed legislation that amends and expands some of the state’s leave laws, including the Family Leave and SAFE Acts, as well as available benefits under New Jersey Family Leave Insurance.  Some of the changes are effective immediately, while others will take effect at a later date. Below are some of the key changes resulting from the recent amendment.

The New Jersey Family Leave Act

The New Jersey Family Leave Act (NJFLA) currently requires employers with 50 or more employees (counting those employed both in and outside New Jersey) to provide their New Jersey employees with up to 12 weeks of employment-protected leave in a 24-month period to care for a family member (which includes a parent, parent-in-law, minor or disabled child, spouse, or civil union partner) with a serious health condition, or to bond with a newly born or adopted child.

While the NJFLA currently applies to employers with 50 or more employees, the recent amendment reduces the employer size threshold to 30 employees. Therefore, beginning on June 30, 2019, employers with 30 or more employees (counting those employed both in and outside New Jersey) are required to provide those employees working in New Jersey with 12 weeks of employment-protected family leave during each 24-month period.

There are other new provisions to the NJFLA, which went into effect immediately:

  • In addition to the previously identified family members (parent, parent-in-law, minor or disabled child, spouse, or civil union partner), employees may now take leave to care for: a child regardless of age; a sibling; a grandparent; a grandchild; a parent-in-law; a foster parent; any individual related by blood; or any other individual with a close association equivalent to a family relationship.
  • Employees are permitted to take leave for bonding with a newborn child conceived through a gestational carrier agreement, or with a newly placed foster child.
  • Employees are permitted to take leave for bonding on an intermittent basis without employer consent.
  • Leave may be taken intermittently over a period of 12 consecutive months (up from 24 consecutive weeks).
  • Except for continuous bonding leave (which still requires 30 days advance notice), leave may be taken on only 15 days of advance notice.

Note that the changes to the NJFLA did not broaden the law to provide for leave for an employee’s own serious health condition. Employees who are eligible for federal Family and Medical leave may take leave for their own serious health condition. In the case of pregnancy, the interplay of the two laws often results in up to 12 weeks of leave for the employee’s own serious health condition due to pregnancy and childbirth, followed by an additional leave up to 12 weeks under the NJFLA for bonding with the newborn baby.

Family Leave Insurance Benefits

New Jersey Family Leave Insurance (“NJFLI”) provides partial wage replacement benefits to employees on family leave through New Jersey’s temporary disability leave benefits program.

NJFLI now includes an expansive anti-retaliation provision that prohibits an employer from discharging or otherwise discriminating or retaliating against an employee because the employee requested or took temporary disability benefits or family temporary disability leave benefits, including “retaliation by refusing to restore the employee following a period of leave.” The amendment provides a private right of action to the employee, which includes various remedies, such as monetary damages, attorneys’ fees and costs, and injunctive relief and reinstatement to his or her former position. Thus, the NJFLI in effect works as a job-protection statute by requiring employers to restore the employee to his or her job at the end of temporary disability leave.

Beginning on July 1, 2020, a number of additional changes will become effective:

  • The amendment raises the amount of the weekly benefit total from two-thirds (currently capped at $650 per week) to 85% percent of an employee’s weekly salary (to a maximum of $860).
  • The benefit period will be increased from 6 weeks to 12 weeks during a 12-month period.
  • The amount of intermittent paid leave benefits will also increase from 42 to 56 days during a 12-month period.

The NJ SAFE Act

The New Jersey Security and Financial Empowerment (“SAFE”) Act provides leave for employees who are victims of domestic violence or sexual assault, or have a family member who is a victim.

Effective July 1, 2020, employees taking leave under the SAFE Act will be eligible for wage replacement benefits from the state, just like employees who take NJFLA leave. Employees can elect to use accrued paid leave, including paid sick leave, or NJFLI benefits while on SAFE Act leave, and such leave would run concurrently with SAFE Act leave. In addition, employers can no longer require employees to use existing paid time off, vacation, or other similar employer-paid benefits for SAFE Act purposes.

The amendment also expands the definition of “family member” under the SAFE Act to mirror the definition under the NJFLA. Eligible “family members” now includes a “parent-in-law,” “sibling,” “grandparent,” and “any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.”

Implications

Many of the amendment provisions are effective immediately or within the next few months. Consequently, covered employers should review their policies to ensure compliance with the amendments. Once issued by the New Jersey Department of Labor and Workforce Development, covered employers should update their NJFLA and NJFLI posters and notices. In addition, it is important to train your human resources staff and inform and update the appropriate management employees about the new legal provisions.

For assistance in ensuring that your policies comply with these amendments, we recommend consulting with labor and employment counsel.

–Leigh McMonigle

MASSACHUSETTS IS ON THE RISE! Increases in the Minimum Wage and Establishment of a Paid Family and Medical Leave Program Strengthen Massachusetts’ Competitive Economic Environment

Q.  Are there any new laws in Massachusetts that my company should be aware of?

A.  Massachusetts Governor Charlie Baker recently signed a bill that will serve as a turning point for working families. Referred to as the “Grand Bargain,” the bill represents a compromise among legislators, labor, community and business groups. The four main components of the bill will significantly impact all Massachusetts employers with at least one employee over the next five years.

Minimum Wage Increases

Currently, the Massachusetts minimum wage is $11 per hour. Under the new law, the minimum wage will increase incrementally to $15 per hour in 2023, tying New York, California and Washington, D.C. as having the highest statewide minimum wage in the country. Beginning January 1, 2019, the Massachusetts minimum wage will increase to $12 per hour, and will increase each year thereafter in $0.75 increments until 2023: $12.75 in 2020, $13.50 in 2021, $14.25 in 2022, and $15 in 2023. The Massachusetts current tipped minimum wage of $3.75 per hour will increase in $0.60 increments each year until it reaches $6.75 in 2023.

Premium Pay for Sunday Work and Work on Legal Holidays

Currently under Massachusetts law, employers must pay premium pay of 1.5 times the hourly rate for work performed on Sundays and Massachusetts’ legally-recognized holidays.  Under the new law, premium pay will be gradually phased out by 2023. Beginning January 1, 2019, workers will be paid 1.4 times their hourly rate as premium pay. The percentage will decrease annually by 10% until 2023, when workers will receive their regular hourly rate regardless of the day worked. Employers cannot require employees to work on Sundays or legally recognized holidays, nor can employees be punished for refusing to work on such days. Note: This decrease is for premium pay only, and is not to be confused with and does not relieve an employer of its obligation to pay one and one-half times an employee’s regular hourly rate for all hours worked in excess of 40 hours in a given work week.

Paid Family and Personal Medical Leave

Massachusetts will join New York, California, New Jersey, Rhode Island, Washington and Washington, D.C. in offering a paid family and medical leave program. Beginning in 2021, eligible employees will be permitted to take up to 12 weeks of job-protected paid leave to care for a sick family member or a newborn, up to 20 weeks of job-protected paid medical leave to attend to their own serious medical needs, and up to 26 weeks of job-protected paid family leave to care for a covered service member. However, an employee may only take a maximum of 26 weeks, in the aggregate, in a benefit year. Upon returning to work, employees must be restored to the same or equivalent positions held prior to taking leave. Employers will be required to post a notice regarding Paid Family and Personal Medical Leave, and newly hired employees must be provided with a notice of benefits within 30 days of their hire date. Note: Paid Family and Personal Medical Leave will run concurrently with leave taken under the Massachusetts Parental Leave Act and the federal Family and Medical Leave Act.

Additional Payroll Tax

The Massachusetts Paid Family and Personal Medical Leave Act will be financed through an additional 0.63% payroll tax, commencing July 1, 2019. Employers are required to deduct this additional tax from an employees’ wages and employers with more than 25 employees are responsible for contributing 60% of the contributions for personal medical leave. Note: Employers may elect to opt out of paying the employer portion of this payroll tax if they provide benefits that equal or exceed those provided by the Massachusetts Paid Family and Personal Medical Leave Program.

Rebecca Alperin

 

Employees Should Not Be Working While on FMLA Leave

Q: Can I require an employee to do work while the employee is on FMLA leave?  What if the employee volunteers to work while on leave?

A: Under most circumstances, employees should not be required or permitted to perform work while on leave.  The Family and Medical Leave Act (FMLA) provides eligible employees a maximum of twelve weeks unpaid, job-protected leave for specified family and personal medical reasons in a twelve month period.  During that time, employers are prohibited from interfering with, restraining, or denying the exercise of or the attempt to exercise, any rights provided under the FMLA.

This does not mean that an employee must be left alone completely. While an employee is on leave, employers are permitted to inquire about the location of documents, the status of an assignment, and pass on institutional knowledge.  However, employers should keep communication with employees on leave to a minimum.  It is recommended that when communicating with an employee on leave, the employer should make it clear that it is not requiring or requesting the employee to work.

Some ways that employers may be found to have interfered with an employee’s leave include forcing an employee to complete an assignment, and denying or discouraging an employee from taking leave. Although interference is determined on a case-by-case basis, employers should be mindful that allowing an employee to work on leave may constitute impermissible interference.

Employers who pay for FMLA leave but allow or require employees to perform work while on paid leave also put themselves at risk of a claim for interference with leave. Although the employee is being paid, the basis for the leave is a medical necessity.  Thus, the employee would be entitled to the protections provided under the FMLA even though he or she is being paid.

As a general practice, employees on leave should not be asked or allowed to work on any assignments. If an employee does perform work while on FMLA leave, any hours spent completing assignments should not count towards the protected twelve week period.  To ensure compliance with the FMLA, employers should include a section in their personnel policies that discusses what conduct is appropriate while an employee is on leave.

– Renee C. Manson

 

New Jersey Becomes Tenth State to Enact Paid Sick Leave

Q.  Do I need to provide paid sick leave to employees in New Jersey?

A.  Last week, New Jersey Governor Phil Murphy signed into law the New Jersey Paid Sick Leave Act, mandating paid sick leave for full and part-time workers in the Garden State. Similar to the laws in other states, the New Jersey law provides for employees to earn one hour of paid sick leave for every 30 hours worked. Employees may use up to 40 hours of earned sick leave in a benefit year.  They may also carry over up to 40 hours of earned sick leave from one year to the next.  Earned sick leave is not paid upon termination, unless a company policy or collective bargaining agreement provides otherwise.

Employees begin to accrue sick leave on their hire date, and are eligible to use them beginning on the 120th calendar day of employment. The employee may subsequently use earned sick leave as soon as it is accrued.  Employees must be paid for earned sick leave at the same rate of pay with the same benefits as the employee normally earns, so long as the pay rate is at least minimum wage.

Earned sick leave may be used for the employee’s own health condition and time off for preventative medical care, and to take care of or coordinate preventative medical care for family members. The term “family member” is defined broadly to include the employee’s child, grandchild, sibling, spouse, domestic or civil union partner, parent, grandparent, in-law, grandparent or sibling of the employee’s spouse, domestic or civil union partner, and “any other individual related by blood to the employee or whose close association with the employee is equivalent of a family relationship.”

Employees also may use earned sick leave for absences as a result of the employee or a family member being the victim of domestic or sexual violence.  In addition, employers must allow employees to use earned sick leave for school closures and to attend school conferences.  Employees may not be subject to discipline for using earned sick leave.

If the need to use earned sick leave is foreseeable, an employer may require up to seven days of advance notice before the leave is taken. Employers must make a reasonable effort to schedule the use of earned sick leave in a manner that does not unduly disrupt the company’s operations.  If the employee uses earned sick leave for three or more consecutive days, the employer may require a doctor’s note supporting the need for leave.

Companies may not require employees to find replacements as a condition of using earned sick leave. While the employer and the employee may mutually agree to allow the employee to work additional hours or shifts to make up the missed time, employees are not required to do so.

What Employers Should Do

The Paid Sick Leave Act goes into effect on November 2, 2018, and preempts all existing city and county sick leave laws in the state. To get ready for the new Act, employers should analyze their current paid time off policies or draft a new earned sick leave policy to ensure that time off is accrued and may be used in the manner provided by the Act.  New Jersey employers also should review their record-keeping policies to make sure that they retain records documenting hours worked and earned sick leave taken by employees for at least five years.

Tracey E. Diamond