COVID-19

Employers can help reduce the chance of harassment is by clearly communicating to their workforce that fear of the COVID-19 pandemic should not be misdirected against co-workers based on national origin, race, among other protected classes.

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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.

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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).

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No. You cannot be forced to work in a setting that ignores guidelines laid out by The U.S. Department of Labor Occupation Health and Safety Administration (OSHA) or by NJ Executive Order 192.

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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.

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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.

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NJ Executive Order 192 states:

• Employees must wear a mask when entering a worksite.
• Employees can remove their masks if they work at a workstation more than six feet away from someone or they are alone in a walled off office.
• Employers must make available, at their expense, masks for employees. However, an employee can wear their own masks if they desire.
• Employers can deny entry to an employee who refuses to wear a mask unless the refusal violates state or federal law.  For example, if the person has a disability, an employer may be required to provide the employee with a reasonable accommodation unless it creates an undue hardship for the employer.  An employer can ask the employee for medical documentation to support their disability claim.

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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.

Employees are generally eligible if: (1) they have been exposed to the virus; (2) if they are caring for a sick family member; or (3) if school or day care closures require them to stay home and care for a child under 18. Individuals who work for a company with more than 500 employees are not eligible for the paid sick and family leave offered by this bill. Conversely, individuals who work for a company with fewer than 50 employees are eligible. However, the company’s owner may be able to file for an exemption from the Department of Labor.

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.

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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.

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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.

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Many employees who are unable to work right now, or who are unable to work at full capacity, are wondering whether or not they will get paid. Nearly everywhere, teachers who are salaried employees are still getting paid per the terms of their contract. If you believe that your contract has been violated, call an employment attorney.

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For employees who do not experience symptoms, or only mild, temporary symptoms, COVID-19 standing by itself would not constitute a “disability” under the ADA, as it would be considered a temporary, non-chronic impairment with little or no long-term impact (i.e., it would fall in the same category as a broken limb or influenza). These types of illnesses are not viewed as disabilities under the ADA. However, an employee may be entitled to ADA protections if their reaction to COVID-19 is severe or if it complicates or aggravates the employee’s other health condition(s) or disabilities. Employers are to assess whether an employee is “disabled” under the ADA on an individual basis, taking into account the aforementioned factors and any other relevant considerations.

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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.

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It may. Pursuant to the NLRA, nonsupervisory employees (whether unionized or non-unionized) may have the right to refuse to work in conditions they believe to be unsafe. However, in order to refuse to work, the employee must have a “reasonable, good faith belief” that working under certain conditions would not be safe. Unionized employees undergo a separate analysis pursuant to Section 502 of the NLRA: refusal to work over safety concerns is protected for unionized employees if the assignment is “abnormally dangerous.” These employees must have a “good faith belief” supported by ascertainable and objective evidence that this working condition exists.

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Employers have an obligation to provide a safe workplace under the Occupational Safety and Health Act and other safety standards of OSHA.

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Yes. In the event of immediate or imminent danger, the Occupational Safety and Health Administration (“OSHA”) provides that an employee can refuse to work. The National Labor Relations Act (“NLRA”) also protects concerted activities by employees, which includes a refusal to work because of unsafe working conditions.

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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.

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Yes. The EEOC has declared that the action of requesting that workers with symptoms go home is either (1) not disability-related action if the illness is akin to seasonal influenza, or (2) is allowed under the ADA if the illness is serious enough to pose a direct threat to employees or coworkers. Moreover, the CDC has advised that employees with symptoms of acute respiratory illness and a fever greater than 100.4 degrees Fahrenheit should stay home.

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Yes. Per guidance issued by the CDC, an employer should inform employees of potential workplace exposure. However, employers are still required to maintain confidentiality under the ADA, and should not identify the quarantined individual.

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COVID-19 related discrimination is prohibited in places of public accommodation. A place of public accommodation is a business that is generally open to the public, such as retail stores, schools, libraries, medical facilities, and recreational facilities. The guidance explains that a medical facility, for example, has a duty to not engage in disparate treatment of patients on the basis of race, national origin, or disability.

Landlords cannot refuse to rent a property to an individual or refuse to make necessary repairs to a tenant’s apartment because they fear contracting COVID-19 due to the individual’s race or national origin. The landlord may take reasonable steps to protect himself and other tenants from COVID-19, however, these steps cannot consist of actions based on race or national origin stereotypes.

Employers may be in violation of NJLAD and its bar on disability discrimination if they fire an employee for showing symptoms of COVID-19.

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In addition to coverage under the FFCRA, you may be eligible for benefits and protections as an employee under a number of state and federal laws, including the Family and Medical Leave Act (FMLA). COVID-19 worker benefits programs that may be available to you include:
-Unemployment;
-Paid sick time (state);
– Paid sick time (federal);
-Paid child sick leave; and
-Federal stimulus checks.

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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.

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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.

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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.

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Visit the Department of Labor’s unemployment insurance page and see if you are eligible to apply for benefits. If you are furloughed or laid off, you are no longer eligible for paid leave under the law, though your employer must still pay you for any covered leave you had already taken at the time you were laid off or furloughed.

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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.

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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.

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NJ Executive Order 192 states:

• Prior to each shift, employers are required to conduct daily health checks of their employees to screen for potential COVID symptoms.  This can include temperature checks, self-assessment checklists and health questionnaires.
• If an employee appears to have COVID symptoms or answers positively to the daily health check, the employer must immediately send the employee home.  The employer must promptly notify all employees of any known exposure at the worksite.  Due to confidentiality laws, the employer cannot disclose the name of the employee.
• If the employee is diagnosed with COVID-19, the employer is required to clean and disinfect the worksite pursuant to CDC guidelines.

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NJ Executive Order 192 states:

• An employer is required to provide sanitation materials such as hand sanitizer and sanitizing wipes.  The employer must pay for the cost of these items. If you are a business that has been passing on these costs to your customers, this may affect you.
• An employer is required to ensure that employees are practicing routine handwashing.  This means providing employees breaks throughout the workday to wash their hands and providing access to handwashing facilities.  If gloves are required at the work site, the employer must provide the gloves.
• Employers must ensure that high-touch areas like countertops, doorknobs, and restrooms are routinely cleaned.

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NJ Executive Order 192 states:

• Employers must require employees, visitors and customers to wear masks when coming on premises. There are two exceptions:  if the visitor is under 2 or when it is not practical to wear a mask.  For example, someone does not need to wear a mask when they are eating or drinking or receiving a service that cannot be performed with a mask on.
• Employers can deny entrance to its workplace to any visitor who refuses to wear a mask. If a visitor says they have a disability and cannot wear a mask, the employer may be required to provide them with a reasonable accommodation if it does not place an undue burden on them. An employer cannot require a visitor to provide medical documentation of their disability unless required by state or federal law.

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NJ Executive Order 192 states: Employers must place employees at least six feet apart from one another. This includes during meetings, in restrooms and in breakrooms. If employees cannot be physically distanced, employers must require employees to wear masks and the employer must erect physical barriers between workstations.

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If you feel your employer is creating an unsafe workplace in light of COVID-19 you should take the following steps:

• Fill out an intake form on the Department of Labor and Workforce Development in New Jersey (NJDOL) website.
• File a complaint with OSHA.
• Refuse to work if all conditions outlined by OSHA are met.
• If confronted with an unsafe work condition, take the following steps:
  • Ask your employer to fix the hazard or assign other work.
  • Tell your employer you will not work until the hazard is fixed.
  • Remain at worksite until your employer tells you to leave.

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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.

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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.

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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.

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To handle the millions of people to be vaccinated, New Jersey is setting up 6 mega sites at the following locations:

• Atlantic County: Atlantic City Convention Center
• Bergen County: Racetrack at Meadowlands, East Rutherford
• Burlington County: Moorestown Mall
• Gloucester County: Rowan College of South Jersey, Sewell
• Middlesex County: New Jersey Convention and Exposition Center, Edison
• Morris County:  Rockaway Townsquare

The COVID-19 vaccine is being phased-in and is currently not available to the general public. Those working in healthcare and nursing homes are receiving the first vaccines. This will be followed by essential workers and those in high-risk categories. The general public is last in line and may not receive the vaccine until late spring/early summer, depending on the availability of vaccine supplies.

No. Under the law in New Jersey, most employees are entitled to workers’ compensation insurance, which pays for medical expenses and a portion of lost wages if a worker is injured on the job or suffers an occupational illness that they would not have contracted but for their workplace activity.

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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.

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.

The ADEA is a federal law which prohibits employment discrimination against individuals age 40 and older. For example, the ADEA would prohibit an employer from intentionally excluding an individual from the workplace based on his being 65 years or older. This prohibition would hold true even if the employer acted for altruistic reasons, such as protecting the employee due to a higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include the right to reasonable accommodation due to age. However, it should be noted that employers are free to provide additional flexibility to workers age 65 and older due to their increased risk. This is not barred by the ADEA, even if younger workers are treated less favorably based on age in comparison.

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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.

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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.

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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