COVID-19
What Is the Jake Honing Compassionate Use Medical Cannabis Act?
If an Employer Provides Flexible Working Accommodations to Employees with Children During the Pandemic, are There Sex Discrimination Issues?
Not necessarily. An employer may provide telework, modified schedules, or other benefits to employees with children without running into sex discrimination issues. Employers may provide flexible working accommodations as long as they are not treating employees differently based on sex or other protected characteristics. By way of example, female employees cannot be given more favorable treatment than their male counterparts based on a gender-based assumption about who has caretaking responsibilities for children.
Read MoreIs There a right to Accommodation Based on Pregnancy During the Pandemic?
Yes. Pregnancy-related medical conditions may be considered disabilities under the ADA, although pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related condition, the employer is obliged to consider the request under ADA rules. Additionally, as amended by the Pregnancy Discrimination Act, Title VII specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the equal to others who are similar in ability or inability to work. A pregnant employee may be entitled to job modifications, such as telework, modified work schedules or assignments, and leave (to the extent provided to similarly situated employees).
Read MoreUnder the EEOC, what Waiver Responsibilities Apply When an Employer is Conducting Layoffs?
Unique rules apply when an employer offers employees a severance package in exchange for a general release of all discrimination claims against the employer. More information is available in EEOC’s technical assistance document on severance agreements.
Read MoreIf I Self Quarantine Without Symptoms, Am I Protected By the Family and Medical Leave Act (“FMLA”)?
No. FMLA coverage is generally available for “serious health conditions.” An employee who is asymptomatic and does not have a sick family member but is self-quarantining is not entitled to FMLA protection.
Read MoreHow Can I Prevent Incidents at Company Events and Holiday Parties?
There are measures that employers can take to protect employees and attendees at these parties. For example, employers may choose not to serve alcohol, or have less alcohol available, via a drink ticket system or otherwise.
Other actions can also prevent disasters, such as choosing not to hang mistletoe, avoiding dancing, hiring security or staff to keep an eye out for individual welfare, and making sure that staffers can invite spouses and family members. Increasing the amount of food that is available is also something that several employers are doing at these parties in order to ensure that everyone is well-fed.
Employees and attendees drinking and driving home is another serious liability concern. Make sure that someone is responsible for monitoring consumption and ensuring no one is driving home if they are unable to do so safely.
Do I Have to Go to Work if Schools in My Area Reopen?
The steps that you should take if your school reopens will be specific to you. If you are an individual who is considered high-risk for serious harm if you contract the coronavirus, you may be eligible to stay home under the Americans with Disabilities Act. You may also have the right to stay at home if you are sick, if you have been exposed to a sick person, or if you have to care for a child who is sick or whose school is closed.
Read MoreWhat Happens if I have a Child at Home I Need to Care for, or a Sick Loved One, and Therefore Cannot Teach Remotely?
If you are caring for a child who is at home because of a school closure, or a loved one who is sick or under self-quarantine, you are likely eligible for compensation under the FFCRA.
Read MoreWhat Happens if I am Sick and Unable to Teach Remotely?
Most educators are covered under the Families First Coronavirus Response Act, which requires compensation for employees who are unable to work because they have a confirmed COVID-19 diagnosis, have coronavirus symptoms, or are caring for someone who is sick. You can read more about the details of the act on the website of the U.S. Department of Labor.
Read MoreCan My Employer Take my Temperature as I Come in to Work?
They may be able to. Normally, temperature checks constitute an overly broad medical exam under the Americans with Disabilities Act (“ADA”). According to the Equal Employment Opportunity Commission (“EEOC”), a medical examination may only be conducted for current employees if it is “job-related and consistent with business necessity.” In response to the 2009 H1N1 virus, the EEOC issued guidance that noted that if a pandemic became widespread in the community as assessed by state health authorities or the CDC, that employers may measure employees’ body temperature. However, if an employer decides that such testing is necessary, then the reasoning and supporting facts should be documented and preserved.
Read MoreWhat Are an Employer’s Workplace Safety Obligations?
Employers have an obligation to provide a safe workplace under the Occupational Safety and Health Act and other safety standards of OSHA.
Read MoreMay an Employer Require Asymptomatic Employees to Telework from Home as a Precaution?
Yes, as long as the employees’ duties lend themselves to telework. The Department of Labor again recently reiterated that requiring or promoting telework can be a valuable infection-control or prevention strategy.
Read MoreCan I Be Retaliated Against for Taking Leave Pursuant To the FFCRA?
No, you cannot. The FFCRA creates a discrimination claim which makes it unlawful for any employer to discharge, discipline, or discriminate in any other manner against an employee who takes leave in accordance with the Act.
New Jersey legislation prohibits employers from terminating or demoting employees who take, or request, time off due to an infectious disease, such as the coronavirus, that could affect others at work based on a written recommendation of a doctor. New Jersey legislation also precludes an employer from refusing to reinstate the employee to the position held when the leave commenced with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment.
Read MoreIf I Take Leave Pursuant To the FFCRA, Am I Still Eligible to Use My Preexisting Paid Leave Benefits?
Yes. The paid sick time offered under the FFCRA must be granted in addition to any preexisting paid leave benefits. Your employer cannot modify its existing paid leave policy to avoid this obligation. Your employer also cannot require that you first use other paid leave benefits.
Read MoreWhat Compensation Does the FFCRA Provide?
The FFCRA gives employees who test positive for coronavirus the following benefits:
- Two weeks of paid sick leave at 100% of the employee’s salary.
- Pay is capped at 80 hours for full-time employees and at up to $511 per day.
- Part-time employees must be granted the amount of hours equal to the number of hours that the employee works, on average, over a two-week period.
In instances where the employee does not have coronavirus but a family member does, the FFCRA allows for:
- Up to ten additional weeks of paid family and medical leave at 67% of the employee’s salary.
- Pay capped at $200 per day.
Can I Get Paid Emergency, Sick, or Family Leave if I Only Work Part-Time?
Yes. If you work part-time, you are entitled to emergency sick time for the number of hours you work, on average, over a two week period.
Read MoreWhat Do I Have to Do to Use Emergency Paid Sick Time During the Pandemic?
As of April 1, 2020, emergency paid sick time is available for immediate use by the employee, regardless of the length of employment. Also, your employer cannot make you to use your preexisting leave benefits before using any emergency sick time.
Read MoreIf I File a Charge with the EEOC After Signing a Waiver, Will I Have to Return My Severance Pay?
No. This is true even if your severance agreement contains provisions that attempt to prevent you from filing a charge with the EEOC, because this sort of provision is unenforceable. You cannot be required to return your severance pay (or other consideration) before filing a charge with the EEOC.
Read MoreWhen Is a Waiver In a Severance Agreement Valid?
Generally, a waiver in a severance agreement is valid when an employee knowingly and voluntarily consents to signing it. If an employee alleges that the waiver is not valid because he did not sign it knowingly and voluntarily, the analysis of the knowingly and voluntarily requirement is dependent on the statute under which suit was, or could be, brought.
Moreover, a valid agreement also must: (1) offer some sort of consideration, such as additional compensation, in exchange for the employee’s waiver of the right to sue; (2) not require the employee to waive future rights; and (3) comply with applicable state and federal laws.
Read MoreDoes the CDC Advise Employers to Take Any Additional Precautions for Employees Age 65 and Older?
Yes. The CDC has noted that individuals age 65 and over are at a higher risk for development of a severe case of COVID-19, should they contract it. Therefore, the CDC has encouraged employers to offer maximum flexibility to individuals age 65 and older.
Read MoreWhat Is the New Jersey Mandatory Overtime Restrictions for Health Care Facilities (MORHCF)?
The MORHCF dictates that health care facilities may not terminate hourly workers who are involved in patient care and clinical services if they refuse to work overtime unless there is an unforeseeable emergent circumstance or a national, state or, municipal emergency.
It states that the emergent circumstance exception should be used as a last resort and not simply because of chronic short staffing. Therefore, employers must exhaust reasonable efforts to fill vacancies before resorting to requiring employees to work hours in excess of a predetermined and regularly scheduled 40-hour workweek.
Due to the Pandemic, May an Employer Exclude an Employee from the Workplace Involuntarily Because of Pregnancy?
No. An employer may not exclude an employee from the workplace involuntarily due to pregnancy. Pregnancy discrimination is considered sex discrimination and is prohibited under Title VII of the Civil Rights Act.
Even if motivated by an altruistic concern for the employee, employers are prohibited from singling out workers on the basis of pregnancy for adverse employment actions. This includes involuntary leave, layoff, or furlough.
With teleworking being the “new normal,” is it still possible for harassment to occur?
Yes. Harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and also in person between employees at the worksite.
Read MoreAre Vaccines Required as a Condition of Employment?
Currently, there is no requirement that employees take the COVID-19 vaccine as a condition of employment. However, if you work in healthcare or the nursing home system, your employer may require the vaccine because you are at high risk for getting and spreading COVID-19.
Can I Still File a Charge with the EEOC if I Believe that I Have Been Discriminated Against Based on My Age, Race, Sex, or Disability, Even If I Signed a Waiver Releasing My Employer from all Claims?
Yes. While your severance agreement may use broad language to describe the claims you are releasing (i.e., “all claims”), you are within your rights to file a charge with the EEOC if you believe you were discriminated against while you were employed or if you believe you were wrongfully terminated.
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