COVID-19

Legal Protections for Covid-19 Related Workplace Leaves

August 19, 2021 | Smith Eibeler LLC

For the past year, employees have been undergoing medical screenings and answering questions about their personal health to gain access to their physical workplaces. Employers can lawfully request their health status or require them to take leave from work if they appear to have symptoms of COVID-19. Despite laws protecting employee privacy and the dignity of being in control of our own medical decisions, the public health emergency resulting from the spread of COVID-19 has drastically changed the landscape when it comes to employment decisions based on disability or perceived disability, the duty to reasonably accommodate and the prohibition against workplace retaliation.

The Equal Employment Opportunity Commission (EEOC) is a federal agency that enforces workplace anti-discrimination laws, including the Americans with Disabilities Act and the Rehabilitation Act. The Americans with Disabilities Act makes discrimination based on disability illegal and protects from retaliation individuals who exercise their rights under that law. Other laws, including state and local laws, such as the New Jersey Law Against Discrimination and the New York City Human Rights Law, provide employees with additional protections. Anti-discrimination laws continue to apply during the time of the COVID-19 pandemic, but they must coexist with guidelines released by the Centers for Disease Control (CDC) and state and local health authorities concerning, among other things, an employer’s right to access employees’ medical information and perform health screenings in the workplace. The intertwining of anti-discrimination laws and public health regulations in the current climate has created a question about whether a COVID-19 infection or perceived infection qualifies an employee for anti-discrimination protection based on disability. The answer will be different depending on whether federal or state law governs the employment relationship, and if state law, which state.

Disability discrimination occurs under the federal Americans with Disabilities Act when an employer treats an employee unfavorably because he or she has a disability, has a history of a disability (such as cancer that has entered remission), or because the employer believes the employee has or used to have a disability. However, not all medical conditions equate to disabilities under the legal definition of the term. A person can show that he or she has a disability in one of three ways: (1) he or she has a physical or mental condition that substantially limits a major life activity (such as walking, hearing, learning, or limits the operation of a major bodily function); (2) he or she has a history of such a disability (past depression that is currently being successfully treated); or (3) he or she is subject to an adverse employment action (such as demotion, termination or a change in job duties or pay) due to the employer’s belief that he or she has a physical or mental impairment that is more than something minor and temporary.

Are Companies Improperly Using Force Majeure Provisions to Cheat Sales Reps Out of COVID-19 Commissions?

December 21, 2020 | Smith Eibeler LLC

Employers are increasingly attempting to avoid having to pay sales employees their rightfully earned and owed sales commissions during the COVID pandemic. In many cases, a company has no legal basis to avoid paying sales representatives their earned commissions by unilaterally retroactively changing the terms and conditions of how sales commissions are earned because COVID related conditions result in an unexpected increase in sales. In these situations, a sales representative understanding of their legal rights is critical if he or she has any hope in recovering their earned commissions.

Employees who are paid through commissions rightfully rely on being timely paid their earned compensation. Commission structures also benefit employers by motivating employees to perform at or above company expectations, thereby increasing profitability for the employer and allowing the employer to identify and reward its most productive employees. The type of commission structure an employer uses can range from simple to complicated, and most of them are memorialized in employment agreements signed by both employer and employee. Once an employee and employer agree to the terms of how commissions are earned and when they are to be paid, an employer cannot unilaterally and retroactively change the terms without breaching the contract or potentially violating wage payment law. If an employer wishes to change the terms and conditions of a commission agreement, like any contract, they must give proper notice to the employee of the proposed change and obtain the employees clear consent to the new agreement. Often, employers who wish to alter commission structures do so to save money, which for the employee, means lower commissions and reduced income.

Sometimes, an employer is prevented from paying agreed-upon commissions due to unpredictable hardships outside of the employer’s control, like acts of terrorism or natural disasters that make performance of the contract impossible or impracticable. For an employer to protect itself from these unforeseen events, they may contain a force majeure clause in a sales agreement which potentially could release the paying party from its obligations when payment becomes impossible or impracticable.

Teacher Requests for Leave Are Forcing Some Schools to All-Remote Learning

August 26, 2020 | Smith Eibeler LLC

As schools scramble to figure out how best to reopen in a couple of weeks, with many opting for a fully remote start to the school year, teachers in some districts are faced with an all too familiar problem for working parents. How will they manage teaching in person and caring for their own kids at the same time? In towns that had planned to reopen with in person instruction, an increasing number of teachers whose children will be at home learning remotely are availing themselves of the 12-week leave available to them under the Families First Coronavirus Response Act (FFCRA). This leave will allow them to care for their own children while many school buildings and childcare centers remain closed.

The FFCRA is a temporary expansion to the Family and Medical Leave Act (FMLA) that requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply through December 31, 2020 to covered employers (those with between 50 and 500 employees) and any employee who has been employed for at least 30 days. Employees can request leave at any time, for several reasons, including because the employee must quarantine, a dependent of the employee must quarantine, or for childcare when the child’s school or usual childcare provider is closed or unavailable for reasons related to COVID-19. When the leave is requested for childcare, employees are entitled to up to 12 weeks of partially paid leave that is subtracted from what would otherwise be their FMLA time. Employers of healthcare workers and first responders can opt out of providing this leave, and employers with fewer than 50 employees can opt out of granting leave requests specifically for childcare issues if granting the request would jeopardize the viability of the business.

Teachers who suffer from disabilities may also be entitled to accommodations, including leave of absence, if they can show the requested accommodation is reasonable and supported by medical evidence. The Law Against Discrimination prohibits employers from discriminating against disabled employees in connection the terms and conditions of their employment. The Law Against Discrimination also requires employers to engage in an interactive process with disabled employees who are in need for assistance, and provide them with reasonable accommodations, unless they can show it would be undue hardship on the school’s operations to provide the accommodation.

The Families First Coronavirus Recovery Act Covers Leave for Closed Summer Camps

July 1, 2020 | Smith Eibeler LLC

For many working parents, school closures across the State of New Jersey since mid-March have posed insurmountable challenges as families attempt to manage work obligations with remote schooling and closed childcare centers. Now that the school year is over for most students and many summer camps are shuttered or running virtually, working parents are faced with a new set of childcare challenges that will impact their ability to fulfill work obligations. What options are available to working parents who are unable to balance the demands of work and childcare during Covid-19 closures this summer?

The United States Department of Labor (DOL) said Friday in one of its guidance letters that working parents may be entitled to up to 10 weeks of partially paid leave over the summer to care for their children if they can show that the virus disrupted plans to send them to a summer camp. To be eligible for such leave under the Families First Coronavirus Response Act (FFCRA), covered workers include those employed by small and mid-size employers—those with more than 50 but fewer than 500 employees.

How does an employee demonstrate the intended plans for his or her children to attend a summer program? Proof of summer camp plans were firm and then disrupted by the virus should be sufficient. The key inquiry is whether there is any “evidence of a plan” to rely on summer camp as a means of childcare, and to consider whether it is “more likely than not” that if the camp was running normally, the child would be attending. Examples of sufficient proof might be an application or deposit that was submitted to the camp, proof that a child was already enrolled in a camp that is now closed, showing the child attended summer camp in previous years, having the child’s name on a camp’s waitlist, or some other indication of the worker’s intent to enroll the child(ren). At a minimum, the employee’s affirmative steps to secure a spot in a summer camp evidences “plans” that should satisfy FFCRA’s requirement for coverage. An employee who merely expressed an interest in a summer program but took no concrete steps toward enrollment will likely not be covered.

BARDA Doctor’s Whistleblower Complaint Brings Conscientious Employee Protections into the Covid-19 Discussion

May 30, 2020 | Smith Eibeler LLC

Many of us have heard of employee whistleblowers who go public with their employer’s egregious wrongdoings and suffer job loss or other retaliation for doing so. Both the federal government and the State of New Jersey offer protections to these conscientious employees. For example, a federal law called the Whistleblower Protection Act of 1989 protects employees who disclose evidence of illegal or improper governmental activities. In New Jersey, we have enacted the Conscientious Employee Protection Act, which is viewed as one of the furthest reaching whistleblower laws in the country. Whistleblower laws such as these were enacted to assure that employees have protections when they do the right thing and oppose unlawful activity of their employer. We, as a society, belief that employers and the government must play within the rules to protect people from being harmed from dangerous situations that can be caused by unlawful conduct.

There is perhaps no better example of the importance that whistleblowers can play in stopping governmental behavior that can cause harm to people than the allegations that Dr. Rick Bright has made against the government concerning its COVID-19 response. Dr. Bright was recently ousted from his prominent position as Director of the Biomedical Advanced Research and Development Authority (BARDA) for what he alleges was in retaliation for disclosing certain violations of law, gross mismanagement and waste of funds, abuse of authority and substantial and specific danger to public health and safety of the government in response to the Covid-19 pandemic.

Dr. Rick Bright recently began making headlines when he went public with his Complaint alleging Whistleblower Retaliation filed with the United States Office of Special Counsel. In the lengthy filing, Dr. Bright alleges that he was fired from his position within the Department of Health and Human Services (HHS) after he refused to spend money on unproven and potentially dangerous drugs that the White House was touting as promising treatments for Covid-19, and he resisted pressure to put in place a national program geared toward expanding public access to those drugs.

How the Families First Coronavirus Response Act Can Provide Help to New Jersey Workers

April 22, 2020 | Smith Eibeler LLC

The federal government recently enacted the Families First Coronavirus Response Act which provides emergency aid to workers as a result the Covid-19 outbreak. The Families First Coronavirus Response Act is a compressive package that, in part, temporary amends the Family and Medical Leave Act (“FMLA”) to incorporate, paid sick leave and extended family leave to support workers that can no longer work due to the coronavirus pandemic.

With respect to paid leave, the Families First Coronavirus Response Act is essentially comprised of two components: The Emergency Paid Sick Leave Act and The Emergency Family and Medical Leave Expansion Act.

The Emergency Paid Sick Leave Act

New Jersey Expands Family Leave Act to Provide COVID-19-Related Job Protection

April 15, 2020 | Smith Eibeler LLC

Governor Murphy signed legislation yesterday that amends the New Jersey Family Leave Act to provide job protections to employees who need to take leave from work during the COVID-19 epidemic in order to care for a family member because of qualifying reasons relating to the coronavirus. The passing of S2374 is part of a series of new laws enacted to address the COVID-19 pandemic and the severe impact it is having on New Jersey workers both at home and at their place of work.

In a press release, Governor Murphy said, “New Jerseyans should not have to make a decision between caring for a loved one with COVID-19 and keeping their job. Our state is already home to the nation’s most comprehensive Family Leave Act, and it’s only right that we expand these protections to meet the unprecedented health crisis we are facing.”

The New Jersey Family Leave Act provides eligible employees with up to twelve (12) weeks of job protected leave for certain qualifying reasons relating to family leave. These include bonding with a new born, adopting a child, the placing of a child into foster care with the employee or providing care to a family member who is suffering from serious health condition. The New Jersey Family Leave Act does not permit employees to take leave for their own serious health condition and therefore does not permit employees to take leave for their own heath related COVID-19 reason. Employees who are suffering from COVID-19 could be eligible for leave under other laws such as the Family and Medical Leave Act, New Jersey Law Against Discrimination or Americans with Disabilities Act.

Do COVID-19 Whistleblowers Have Legal Protection Against Workplace Retaliation?

April 8, 2020 | Smith Eibeler LLC

The COVID-19 pandemic has forced many New Jersey employees to work in unsafe work environments. Facing increased risk of exposure, many employees are rightfully concerned that they will become infected or infect others because of their employer’s failure to have in place proper safety measures limiting the spread of COVID-19 at the workplace. Not surprisingly, many New Jersey workers who are forced to work in unsafe working environments have voiced objections to their employers, governmental officials and others concerning the unsafe work environments. With the increased number of employee complaints, many complainants are left wondering whether they have any legal protection against their employers who have taken adverse employment action against them in retaliation for their complaints. While we indeed may be living in unprecedented times, the COVID-19 pandemic is not a defense available to employers who choose to retaliate against employees for making reasonable and good faith complaints concerning unlawful workplace issues. Luckily for New Jersey workers, the state’s strong whistle-blower laws can provide employees with legal protections should they be fired from their jobs for complaining about unsafe work environments, improper quality of patient care or other unlawful business activities.

The New Jersey Conscientious Employee Protection Act is often described as being one of the most far-reaching, pro-employee, whistleblower statutes in the United States. The purpose of the New Jersey anti-retaliation law is to protect whistleblowers from being retaliated against when they disclose, complain, object to or refuse to participate in certain actions at the workplace that he or she has a reasonable belief to be either unlawful, in violation of public policy or improper quality of patient care, should the employee be a licensed or certified health care professional. A retaliatory action can manifest in the form of a demotion, suspension, termination or other forms of adverse action that would dissuade a reasonable worker from making or supporting a charge of unlawful retaliation.

Governor Murphy’s Executive Order No. 107 may also provide COVID-19 whistleblowers with additional legal support that their COVID-19 related complaints are protected under the New Jersey whistleblower law. While Executive Order No. 107 bans many non-essential retail businesses from operating during the pandemic, it also places obligations upon essential or non-retail businesses and how they need to operate their business during the pandemic. For example, all businesses must accommodate their workforce, wherever practical, for telework or other work-from-home arrangements. Additionally, for employees who cannot perform their job duties via telework or work-from-home, businesses should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue. Many businesses are ignoring these requirements in running their business during the pandemic.

Can an Employee be Terminated for Reporting Violations of New Jersey’s COVID-19 Executive Order 107?

March 25, 2020 | Smith Eibeler LLC

An employee may have a claim for whistle-blower retaliation under New Jersey state law if their employer takes adverse employment action against him or her for complaining directly to the employer or or reporting violations of New Jersey Executive Order 107 to a governmental agency. Executive Order 107 was signed by Governor Murphy on March 21, 2020 in furtherance of concerted efforts to stop the spread of COVID-19. Since its passing, there have been many news stories of New Jersey employees reporting that employers are conducting business as usual and in violation of their legal obligations under Executive Order 107. Employers who retaliate against their employees for “blowing-the-whistle” on violations of Executive Order 107 may also find themselves subjected to liability under the New Jersey Conscientious Employee Protection Act.

The New Jersey Conscientious Employee Protection Act is considered one of the furthest reaching anti-whistleblower statutes in the country. New Jersey’s whistle-blower protection law makes it unlawful for an employer to take adverse employment action (including, but not limited, to termination) against an employee for engaging in protected activity that is covered by the statute. There are many forms of protected activity recognized under the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34-19-3. For example, an employee who discloses or threatens to disclose to a supervisor or public body practices or acts of the employer that he or she reasonably believes to be in violation of a law, rule or regulation promulgated pursuant to the law is engaging in protected activity under the statute. Protected activity can also include objecting to or refusing to participate in any activity, policy or practice that the employee reasonably believes is “incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.” N.J.S.A. 34-19-3(c)(3).

The clear stated purpose of Executive Order 107 is to limit the spread and mitigate the impact of COVID-19. In order accomplish the objections of the executive order, Governor Murphy ordered specific directives upon employers concerning how they must conduct their business operations during the coronavirus pandemic. Among other things, Executive Order 107 directs the temporary closure of non-essential retail businesses. It also mandates non-retail businesses to accommodate their workforce for telework or work-from-home arrangements. The term “telework” is defined in the order as “the practice of working from home or alternative locations closer to home through the use of technology that equips the individual to access necessary materials.” The order further states that in situations in which employees cannot perform their job functions via telework or work-from home arrangements, the employer should make best efforts to reduce staff on-site to the minimal number of workers necessary to ensure the continuation of essential business operations.

Is it Unlawful to Terminate an Employee Because they have COVID-19?

March 24, 2020 | Smith Eibeler LLC

For New Jersey employees, the short answer is yes. On March 20, 2020, Governor Murphy signed into law new legislation that makes it unlawful for an employer to take adverse employment actions, including termination, against any employee for requesting or taking time off from work because the employee has or is likely to have the Coronavirus. The new law, A3848, comes in the wake of the Public Health Emergency and State of Emergency declared by Governor Murphy earlier this month. This new Coronavirus job protection law will provide victims of the virus with much needed protections from losing their job or being denied reinstatement.

The legislation was enacted as a part of the New Jersey’s continued efforts to deal with the Coronavirus pandemic and the devastating impact is having and will continue to have on individuals and their employment. In the last few weeks, the number of confirmed cases of Coronavirus in New Jersey has continued to climb and is expected to continue to rise expenditionaly. Among the attempts to slow the spread of the disease, medical professionals have advised those who have contracted or are suspected to have contracted the novel Coronavirus to quarantine themselves. Even those individuals who have not come in to contact with the disease are being urged to practice social distancing, isolating themselves in an attempt to limit potential exposure to the disease. As Governor Murphy stated in one of his recent press briefings, “Quite simply, stay at home.”

Prior to the passing of this Coronavirus job protection law, it was unclear what sort of job protection a quarantined individual would have during the Coronavirus outbreak. The New Jersey Law Against Discrimination, which provides employees protection from discrimination and retaliation in the workplace, has a broad definition of “disability” that includes certain types of serious illnesses. However, some courts have interpreted the New Jersey Law Against Discrimination’s broad provision concerning disabilities not to cover transient illnesses such as the flu. While the Coronavirus is concernedly much more serious than the common flu, it remains unclear whether the New Jersey Law Against Discrimination is a viable avenue to relief for affected employees.