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Employment Law Blog

Categories: Paid Sick Leave

DOL Explains Small Business Exemption from Federal Leave

April 7, 2020

The U.S. Department of Labor has published “temporary regulations” to explain how small businesses (fewer than 50 employees) may exercise the exemption from certain leave obligations under the Families First Coronavirus Response Act (“Families First Act”).

As previously reported, the Families First Act has two leave components: paid leave under the Emergency Paid Sick Leave Act (“PSLA”), and paid and unpaid leave under the Emergency Family and Medical Leave Expansion Act (“EFMLA”).

A small employer (less than 50 employees) is exempt from the PLSA’s and EFMLA’s leave requirements if the requested leave would jeopardize the viability of the business as a going-concern.  Importantly, the exemption applies only to child-care related leave, where an employee is unable to work or telework due to the need to care for his/her minor child whose school/daycare has been closed or whose childcare provider is unavailable as a result of COVID-19. (PSLA qualifying reason #5, and EFMLA’s only qualifying reason).

A small employer may invoke the carve-out if an authorized officer of the business determines that:

  • The leave would result in the business’s expenses and financial obligations exceeding available revenues such that the small business would cease to operate at minimal capacity;
  • The employee’s absence would entail a substantial risk to the small business’s financial health or operational capability because of the employee’s unique skill, knowledge of the business operation or responsibilities; or
  • There are not sufficient workers who are able, willing and qualified (and available at the time and place needed) to perform the employee’s services which are needed for the small business to operate at minimal capacity.

The DOL’s regulations require a small employer seeking to invoke the exemption to document its determination, including which of the above criteria it relied on.  At this time, employers need not send the documentation to the DOL but must retain it, presumably in the event of a future DOL inquiry or audit.

Finally, all employers, including small employers exercising this exemption with respect to one or more employees, must post (or deliver via email) the DOL’s poster informing employees of these new laws which can be found here

Attorney: Lauren Topelsohn
Related Practice: Labor and Employment

DOL Announces FFCRA Regulations

April 2, 2020

Yesteray, the U.S. Department of Labor (“DOL”) announced a “new action” regarding the protections and relief available under the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (“FFCRA”). The Department’s Wage and Hour Division “posted a temporary rule issuing regulations pursuant to the new law, effective April 1, 2020,” available here.

FFCRA requires all private employers with less than 500 employees (subject to exemptions) to provide up to 80 hours (or 10 days) of paid sick leave for a “qualifying reason” related to COVID-19. In exchange, employers will receive a “tax credit” for the cost. According to the DOL, “[t]he legislation will ensure that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus, while at the same time reimbursing businesses.” 

For any questions regarding your obligations under FFCRA, please feel free to contact any member in our Labor and Employment Practice Group.

Attorney: Lauren Topelsohn
Related Practice: Labor and Employment
Category: Paid Sick Leave

COVID-19 Highlights The Importance Of Having Employers' Personnel Policies And Employee Handbooks Reviewed And Updated Now By Counsel

March 26, 2020

As we all continue to struggle with the impact of the coronavirus, the pandemic has highlighted why employers must stay vigilant with regard to updating their personnel policies and employee handbooks.

Those businesses considering furloughs (unpaid leaves of absence), individual terminations and/or downsizings must consider whether those affected have written employment agreements and whether they are covered by any stand-alone personnel policies or policies contained within an employee handbook. This must be done while at the same time analyzing numerous employment statutes and laws. For example, what does an employee’s contract say about the right to terminate with or without cause? What does it provide for vacation and sick pay? Similarly, what does your businesses personnel policies and handbooks say about whether the company must pay paid time off, vacation and/or sick days if an employee is terminated?

Once an employer understands its contractual obligations, an analysis must be done of state paid sick leave laws, wage and hour laws, whether the adverse employment action could result in a discrimination or retaliation claim or implicates the WARN Act, whether it complies with the new Families First Coronavirus Response Act (“FFCRA”), enables those terminated to receive the benefits of the stimulus package that should be approved tomorrow, and on and on.

While it may or may not be too late to change an employers’ employee handbooks now to deal with immediate employment actions that employers are considering, it is important to make certain immediate changes that could protect the company as we continue down the rocky road still ahead of all of us as a result of the pandemic.

Employers who wish to have their personnel policies and employee handbooks reviewed should contact Steven Adler at sadler@lawfirm.ms.

Attorney: Steven Adler
Related Practice: Labor and Employment

New York Department of Labor Issues Correction on COVID-19 Disability and Family Leave Benefits

March 25, 2020

As we previously reported, on March 18, 2020, effective immediately, all New York employers must provide sick leave for any employee (with limited exceptions) “who is subject to a mandatory or precautionary order of quarantine or isolation issued by New York, the Department of Health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.” 

New York’s Short-Term Disability and Paid Family Leave have also been expanded to provide these leave benefits for employee absences due to COVID-19 related quarantine/isolation.

Governor Cuomo’s “New York State on PAUSE” Executive Order 202.6 of Friday, March 20, 2020, also known as the “Stay-At-Home” Executive Order (the “Executive Order”), required all non-essential businesses to close by 8 p.m. beginning on March 22, 2020, and for all of their employees to stay home and work remotely if possible.

Since the COVID-19 Paid Leave Law extended disability and paid family leave benefits to employees under quarantine or isolation required by the State; and since the Executive Order required all non-essential workers to stay home; it was initially interpreted that all employees subject to this Executive Order would be entitled to this Leave.  

However, the New York Department of Labor (NYDOL) has now issued a “correction” that the expansion of disability and paid family leave under the COVID-19 Paid Leave Law, does not apply to all employees who have been ordered to stay home under the Executive Order; even though it is clearly a state order of quarantine or isolation for all workers to “stay home,” except for workers in essential businesses. NYDOL now corrects its prior announcement and says that these benefits only apply to employees who have an individualized order of quarantine or isolation.    

We expect this is not the first roll-back “correction” or interpretation” we are going to see as the government calculates the cost of providing these benefits under this and other emergency statutes.

Attorneys: Lauren Topelsohn and Dennis Alessi
Related Practice: Labor and Employment
Category: Employee Benefits, Paid Sick Leave

U.S. Department of Labor Publishes Guidance on the Sick Leave And Expanded Family and Medical Leave Under The Families First Coronavirus Response Act

March 25, 2020

Today, the U.S. Department of Labor’s Wage and Hour Division announced “its first round of published guidance” to provide information to employees and employers about the protections and relief offered by the Families First Coronavirus Response Act (“FFCRA”) when it takes effect on April 1, 2020.

The FFCRA requires private businesses with fewer than 500 employees to provide eligible employees with paid leave under its two component parts, the Emergency Paid Sick Leave Act and the Family and Medical Leave Expansion Act, in exchange for which employers will receive tax credit. The legislation is intended to support employees during the pandemic while offsetting employers for the cost of the new benefits.

The guidance includes:
A Fact Sheet for Employees
A Fact Sheet for Employers
A Questions and Answers (FAQ) that addresses specific questions relevant to both employers and employees

Attorney: Lauren Topelsohn
Related Practice: Labor and Employment

Managing The Many Emerging Challenges of COVID-19 For NJ Employers

March 24, 2020

Facing the impact of COVID-19 while wishing to reserve the capacity of New Jersey’s health care system for the most vulnerable, Governor Phil Murphy on March 21st signed Executive Order No. 107 which directs all New Jersey residents to stay at home until further notice. This unprecedented measure effectively puts many New Jersey workers and their employers out of work or out of business with the exception of those performing “essential services” or whose workers can perform services remotely from their homes.

Employers that do not fit into these exceptions now face potentially massive losses and the need to address employment issues with now idled employees. Employers want to know what they can/must do under such circumstances. Contract law and New Jersey’s complex and comprehensive employment laws, such as the NJ Paid Sick Leave law, create substantial legal impositions for employers.

An employer’s first step should be to evaluate each employee’s current status. Termination may be necessary, but assuming that it is intended for the employee to resume employment once conditions permit, how should the termination be classified? A term that is frequently applied to such circumstance is “lay off.” But what is that?

In the absence of contractual authority, a lay-off is frequently defined to be an involuntary employment separation occurring through no fault of the employee. A “temporary” lay-off implies the parties’ intention that the affected employee will be re-employed once conditions permit. Laid-off employees are usually eligible to collect unemployment compensation up to a maximum of 26 weeks or until re-employed if sooner.

In the turmoil and confusion of the present time, employers are attempting assess what must be done to survive. As a first step, determine what is owed to employees, starting with a review of the Company’s Employee Handbook if one exists and other pay policies. What do these policies say regarding the grant of non-statutory paid time off (PTO)? New Jersey law permits the forfeiture of unused PTO days if employment has ceased for any reason provided the policy provides for such forfeiture. If an employee has the protection of a written employment agreement, such agreement may address the issue of severance. It is not too late to revise your Handbook (at least prospectively) provided the Handbook expressly states that it is not a contract and may be revised at any time.

Regarding New Jersey’s Paid Sick Leave Act, the law provides that payment must be made for:

…Time during which the employee is not able to work because of a closure of the employee's workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee's family in need of care by the employee, would jeopardize the health of others….

While there is and should be much concern for the welfare of the affected employees, many employers now face a struggle to survive. Effective on April 2, 2020, the Families First Coronavirus Response Act (“FFCRA”) wil l go into effect . This decisive Congressional action creates two new programs: first, the grant of ten (10) paid sick days for employees to permit the paid absence from work due to personal or familial COVID-19 illness issues; and second, the grant of a very liberalized paid family leave for all employers with 500 or less employees and covering virtually all employees who have worked for 30 or more days.

The law provides for possible recompense to employers for such costs through tax credits and/or possible tax refunds if credits are insufficient, but such relief will not be realized tor at least 90+ days. In many cases, smaller employers in particular may not survive to receive such benefit.

The FFCRA will be effective as of April 2nd. We expect that it will be applied only prospectively. Struggling employers must carefully consider whether layoffs should be imposed before that law is effective as a defensive measure. Waiting until the effective date will guarantee the payment of two weeks’ pay to all employees who are still employed as of that date (unless it is determined that employees can be terminated while being paid pursuant to the FFCRA) plus the possible grant of the many other benefits attendant to the drastically revised FMLA: paid leave under certain circumstances at 2/3rds pay plus the possible continuation of health insurance for a maximum of 12 weeks.

These are difficult times for both employers and employees. Unfortunately, the hope of survival may require strategic actions that are very unpleasant and difficult. All legal and economic exposures must be carefully reviewed, and there is little time to take such action.

Please speak with a Member of the Mandelbaum Salsburg's Employment Law Department for further advice.

Attorney: Gary Young
Related Practice: Labor and Employment

Federal Families First Coronavirus Response Act

March 22, 2020

Federal Families First Coronavirus Response Act (the “Family First Act” or “Act”) was signed on March 18, 2020. The Act’s employment provisions become effective no later than April 2, 2020 and last until December 31, 2020.

The Family First Act includes two leave components: paid sick leave and paid family and medical leave. The Act supplements employees’ rights under any other applicable federal, state or local law, and existing employer policy.

1. Paid Sick Leave:

Provides for up to 80 hours (or 10 days) of paid sick leave for a “qualifying reason” related to COVID-19.

Coverage:

Employees: all employees (regardless of tenure)
Employers: All private employers with less than 500 employees.
Exempt Employers: the Department of Labor is authorized to issue regulations to exempt:
  • Employers with less than 50 employees where such leave would “jeopardize the viability of the business as a going concern” and
  • Health care providers and emergency responders.
Qualifying Reasons:

Leave applies to all employees who cannot work or telework because the employee.
  1. Is subject to a COVID-19 federal, state, or local quarantine order
  2. Has been advised by a health care provider to self-quarantine due to COVID-19 concerns
  3. Is symptomatic and seeking a medical diagnosis.
  4. Is caring for an individual subject to a quarantine order or who has been advised by a health care provider to self-quarantine.
  5. Is caring for a son or daughter whose school/day care is closed, or whose childcare provider is unavailable due to COVID-19 precautions.
  6. Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Amount of Time
  1. Full-time employees: 80 hours (10 days) of paid sick time
  2. Part-time employees: equal to the average number of hours the employee worked over a two-week period.
  3. Employees with variable schedules: equal to the average number of hours worked per day over the previous six months. If the employee has not worked six months, it is the employee’s reasonable expectation at the time of hire of the average number of hours per day they would normally be scheduled.

Pay Rate

  1. Employee Illness, Symptomatic or Subject to Quarantine Order: if leave is used for reasons (1)-(3), employee’s regular rate or minimum wage, whichever is greater to a maximum of $511/day (and $5,110 in the aggregate).
  2. To Care for Another, Childcare or “Substantially Similar condition”: if leave is used reasons (4)-(6), the rate is no less than 2/3 of employee’s regular rate, to a maximum of $200/day (and $2,000 in the aggregate) or minimum wage, whichever is the greater.
Other Rules:
  • Vesting? No. If it is a “qualifying reason”, paid leave is immediately available. No waiting period permitted.
  • Carryover/payout? No. Leave does not carry over to following calendar year. Unused leave is not paid out at termination.
  • Exhaustion of Other PTO? No. Employers may not require employees with a qualifying reason to use other paid leave first.
  • Notice? After the first workday on leave, employers may require reasonable notice to continue leave.
2. New Family and Medical Leave Act (“FMLA”)

Provides up to 12 weeks of job-protected leave (including up to 10 paid weeks), to employees unable to work (or telework) only due to a COVID-19 school and child-care closing.

Coverage:
  • All Employees who have been employed for at least 30 calendar days with no minimum number of hours worked
  • All employers with fewer than 500 employees subject to exclusions.
  • Exemptions: the Department of Labor is authorized to issue the same carve outs under the Paid Leave component for small businesses (fewer than 50 employees) and health care providers.
Qualifying Reasons

Applies to employees who are unable to work or telework only due to the need to care for the employee’s minor child whose school/daycare has been closed or whose childcare provider is unavailable as the result of a public emergency relating to COVID-19

Amount of Paid Leave
  • The first 10 days may be unpaid (during which an employee may utilize otherwise accrued paid leave).
  • After the tenth day, leave must be paid at a rate of at least two-thirds of the employee’s regular rate according to the number of hours the employee is normally scheduled to work, up to a maximum of $200 per day ($10,000 in the aggregate).
Reinstatement

Employees are to be reinstated to the same or an equivalent position with a carve out for small businesses. Employers with fewer than 25 employees do not have reinstate the employee if: (1) the employee’s position no longer exists due to conditions caused by a public health emergency during the leave, (2) the employer makes reasonable efforts to restore the employee to an equivalent position, but those efforts fail and (3) the employer makes reasonable efforts to contact the employee if an equivalent position becomes available for one year after the earlier of 12 weeks after the employee’s leave commences or the date on which the qualifying need to use leave concludes.

Notice: where this leave is foreseeable, employees must provide employers with notice of the need to use leave as practicable.

Tax Credits

Effective no later than April 2, 2020 and expiring on December 31, 2020, employers are entitled to a refundable payroll tax credit equal to 100 percent of the leave paid as sick leave or as enhanced FLMA, with certain caps. The tax credit is allowed against the employer portion of Social Security and Medicare taxes. Self-employed individuals are entitled to a refundable income tax credit.

Sick Leave Cap

The paid sick leave credit is equal to the wages actually paid, up to a maximum of $511 per day while an employee is on paid sick leave to care for themselves, and $200 per day if the employee is on paid sick leave to care for a family member or child. The credit is also limited to 10 days per employee. The credit is refundable to the extent it exceeds the amount the employer owes in payroll taxes.

FMLA Cap

The amount of qualified family leave wages taken into account for each employee is capped at $200 per day and $10,000 for all calendar quarters. The paid FMLA credit is not available to employers already receiving a credit under the Tax Cut and Jobs Act. The credit is refundable to the extent it exceeds the amount the employer owes in payroll taxes.

Attorney: Lauren Topelsohn
Related Practice: Labor and Employment

The Families First Coronavirus Response Act Exemption for Health Care Providers and Emergency Responders

March 21, 2020

Much has been written the past few days about the Families First Coronavirus Response Act (“FFCRA” or the “Act”). As we have reported, the Act provides two specific benefits for employees of companies with less than 500 employees.  First, it provides paid sick leave of up to ten (10) days in addition to whatever paid sick leave states may have already granted by statute.  Second, it provides for paid family leave but only under very limited circumstances.  There is an exemption, however, for “health care providers” and emergency responders.  The Mandelbaum Salsburg Coronavirus Task Force has fielded many questions since our Webinars this past week concerning the breadth of the exemption and how it works.

It is clear the exemption was included in the law to keep health care providers and emergency responders at work and on the front lines to fight the pandemic.  Obviously, we don’t want to force those providers who have the virus to expose others.  However, the law did not want to give health care providers and emergency responders the unfettered right to stay home and be paid to care for healthy children who are unable to go to school or childcare because of the coronavirus.  Both the paid sick leave and paid family leave provisions of the Act allow those who are not health care providers or emergency responders to receive these benefits at least to the extent that they cannot telework.

There are two questions that must be answered to determine the applicability of the exemption.  First, who are considered “health care providers” under the Act?  Second, how does an employer take advantage of the exemption?

All employees of a hospital, surgi-center or medical group are not exempted from these benefits.  The Act makes clear that it is not the employer who must be a health care provider or an emergency responder, it is the employee.  Therefore, a secretary or receptionist for a medical group, for example, is a covered employee under the Act and generally entitled to those benefits.

The Act authorizes the Secretary of Labor to promulgate regulations to exclude certain health care providers, as defined in the Family and Medical Leave Act (“FMLA”), from the definition of “eligible employees” under the Act.  The FMLA defines “health care provider” to mean a doctor of medicine or osteopathy who is authorized to practice medicine or surgery.  It also authorizes the Secretary to include as health care providers any other persons whom the Secretary of Labor determines to be capable of providing health care services.  Prior to the adoption of the Act, the Secretary determined that dentists, podiatrists, optometrists, chiropractors, clinical psychologists and nurse practitioners all were health care providers.  See 29 C.F.R. 825.125 (b).  Presumably, this earlier determination enables employers to designate these practitioners as exempt from the Act.  Should the pandemic continue to grow, it would not be a surprise if the Secretary labels others as health care providers exempted from the Act.

Under the Act, It is left up to employers to decide whether to exclude their health care providers from the Act.  No approval is needed from the Secretary of Labor.  The law firm’s Task Force will continue to update you as things develop.

Our attorneys are available to assist you through these difficult times.  Any personnel or employment issues should be directed to Steven Adler, Co-Chair of the Labor and Employment Group and Co-Chair of the Litigation Department, and any healthcare related questions should be directed to Mohamed Nabulsi, Chair of the Healthcare Law Department. 

Attorney: Steven Adler
Related Practice: Labor and Employment

New York State Requires Paid Leave for Covid-19 Quarantined Employees

March 18, 2020

Effective immediately, and with limited exceptions, all New York employers must provide sick leave for any employee “who is subject to a mandatory or precautionary order of quarantine or isolation issued by New York, the department of health, local board of health, or any governmental entity duly authorized to issue such an order due to COVID-19.

The amount and type of sick leave (paid or unpaid) depends on the number of employees a business had as of January 1, 2020. In addition, businesses with ten or fewer employees must look at their 2019 net income. Based on those variables, employers must provide sick leave as follows:

  • For businesses with ten or fewer employees as of January 1, 2020; and 2019 net income of less than $1 million: Unpaid sick leave (and any other benefit provided by any other law) to an employee under quarantine or isolation until the termination of any quarantine or isolation order. During the leave period, employees are eligible for New York State Paid Family Leave (“PFL”) and short-term disability benefits. 
  • For businesses with ten or fewer employees as of January 1, 2020; and 2019 net income of more than $1 million: At least five days of paid leave, and unpaid leave until the termination of any order of quarantine or isolation. After five days, the employee is eligible for PFL and short-term disability benefits.
  • For businesses with between 11 and 99 employees as of January 1, 2020: At least five days of paid sick leave, and unpaid leave until termination of any quarantine or isolation order. After five days, the employee is eligible for PFL and short-term disability benefits.
  • For businesses with 100 or more employees as of January 1, 2020: At least 14 days of paid sick leave.

Supplemental Sick Leave Benefit. These new benefits are in addition to any other sick leave already provided by the employer. They must be provided without loss to any other accrued sick leave.

Both the federal Families First Coronavirus Response Act, and the New York-specific act were passed on March 18, 2020. In anticipation of the federal act, the New York law provides that to the extent it overlaps with any federal sick leave and/or employee benefits law “related to COVID-19” the New York “quarantine law” benefits are “not available…provided, however, that if the provisions” of New York’s law provides for “sick leave and/or employee benefits in excess of the benefits provided by the federal [act]” an employee is entitled to “to claim such additional sick leave and/or benefits” in the amount of such difference.

Exceptions. New York’s leave law does not apply to an employee who is:

  • Deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under a mandatory quarantine through remote access or similar means.
  • Subject to quarantine because: (1) the employee returned to the United States after traveling to a country for which the CDC has issued a level two or three health notice; and (2) such travel was not part of the employee’s employment or at the direction of the employer; and (3) prior to travel, the employee was provided notice of the travel health notice and the eligibility limitations under the law prior. However, the employee may use other accrued leave provided by the employer’s policy or unpaid sick leave for the duration of the quarantine or isolation.

Reinstatement. In addition,employees returning from this leave must be restored to the position they held prior to taking the leave, with the same pay and other terms of employment. Discrimination or retaliation for taking or requesting leave is prohibited.

Finally, employers should be aware that New York’s Short-Term Disability and Paid Family Leave programs have been expanded to provide coverage for COVID-19 quarantine-related absences (for more information see here).

Attorneys: Dennis Alessi and Lauren Topelsohn
Related Practice: Labor and Employment
Category: Paid Sick Leave, Employee Benefits

The Proposed Families First Coronavirus Response Act

March 16, 2020

Late Friday, the United States House of Representatives passed a relief bill aimed at containing the widening effects of the coronavirus on the United States economy and public health. The bill H.R. 6201, the Families First Coronavirus Response Act, is supported by President Trump and still needs to pass the Senate. 

Here are some of the key features of the bill:

  • Employers with under 500 workers must provide two weeks of paid sick leave for full-time employees who become infected with the coronavirus or need to care for someone who is infected, as well as employees who are quarantined or whose place of work or children’s school is closed due to the coronavirus.  For part-time workers, employers with under 500 workers must pay them the typical number of hours they work in a typical two-week period;
  • After two weeks of paid leave, employees would receive a benefit from employers that will be no less than two-thirds of employees’ usual pay;
  • Employees of companies with under 500 workers would have the right to take up to three months of job-protected leave to quarantine themselves or to care for family members who are quarantined or for a child whose school has been closed.  Unlike the federal Family and Medical Leave Act (“FMLA”) and the New Jersey Family Leave Act (“NJFLA”), employees need to have been employed only for thirty (30) days to be entitled to this benefit;
  • The bill calls for a tax credit for businesses and self-employed individuals to cover sick leave equal to one hundred percent (100%) of qualified sick leave wages (with certain caps) paid by an employer for each calendar quarter;
  • The bill proposes $1 billion in grant funding for states to expand unemployment benefits for people who lose their jobs due to the coronavirus outbreak.
As noted above, the bill still needs to pass the Senate.  There are also a lot of unanswered questions, including how it will interact with the federal and various states’ family and medical leave laws.  Stay tuned for further developments.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Employee Benefits

When Chicken Soup is Not Enough: Preparing for the Coronavirus

March 3, 2020

Employers should be gearing up for a possible outbreak of coronavirus in their geographic areas. This includes establishing certain safety precautions as well as issuing a policy concerning certain protocols to be followed in the workplace. The policy should include:                

  1.  notification concerning how the virus is transmitted;
  2.  the incubation period of the virus;
  3.  whether the Company will provide any protective clothing;
  4.  for companies in certain industries, the guidelines OSHA has issued; and
  5.  steps the Company wants employees to follow including hand washing, working from home, providing a doctor’s note before returning to work, etc.

Policies need to be in conformity with the requirements of the Americans with Disabilities Act (“ADA”) and state disability laws such as the New Jersey Law Against Discrimination (“NJLAD”) concerning inquiring about employee’s health and the need to provide any reasonable accommodations.  Leaves of absence also may be necessary and must comply with the federal Family and Medical Leave Act (“FMLA”) for employers with at least fifty (50) employees and the New Jersey Family Leave Act (“NJFLA”) for employers with at least thirty (30) employees.  Employers should also review the EEOC’s guideline entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.”  We are here (or working remotely) should you need further guidance.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: FMLA/FLA, Paid Sick Leave

NJ Department of Labor Publishes FAQs to Clarify Paid Sick Leave Law

November 29, 2018

The New Jersey Department of Labor and Workforce Development ("DOL") has published a list of Frequently Asked Questions ("FAQs") intended to address various unanswered (and unclear) questions regarding the new Sick Leave Law.

The FAQs are available at:
https://nj.gov/labor/forms_pdfs/lwdhome/Legal/earnedsickleave.pdf

The DOL's mandatory workplace poster is available at:
https://nj.gov/labor/forms_pdfs/mw565sickleaveposter.pdf

Naturally, if you have any questions regarding your obligations or rights under the Sick Leave Law, or other employment-related laws, please do not hesitate to contact any member of the Firm's Employment Law Group.

Attorney: Lauren Topelsohn
Related Practice: Labor and Employment
Category: Paid Sick Leave

Time To Review Your Company's Personnel Policy

November 14, 2018

As the weather gets colder and the days shorter, the end of the year can’t be too far away. Now is a good time to start reviewing your Company’s personnel policies so that your house can be in order to start the new year.

Here are a few questions for your HR team to answer to determine whether you need outside counsel to review your personnel policies and practices:
  1. When was the last time your Employee Manual was reviewed? There have been a number of significant changes in the law that might impact your policies.
  2. Does your Company’s sick leave policy comply with NJ’s paid sick leave law? The new law took effect October 29th.
  3. Has the Company reviewed its pay policies? There were significant changes this year in New Jersey concerning equal pay. In just the past few days Hewlett Packard was hit with a gender pay gap lawsuit.
  4. Do you have a workforce in New York state? If so, has your Company provided them with mandatory sexual harassment prevention training? Has your Company issued a compliant policy? This law became effective October 9th and applies to all employers. It requires annual training. New Jersey also requires training of managers and staff members.
  5. Does your Company require employees to arbitrate disputes? When was the last time your arbitration policy was reviewed? There have been some significant changes in this area. Both Google and Facebook recently announced that they will not require employees to arbitrate sexual harassment claims.
  6. Does your Company require releases when severance is paid? Do the agreements require confidentiality? If so, it might interfere with the Company being able to deduct the severance payments as a business expense.
The Labor & Employment Law Group at the Firm is available to answer any questions you may have or help bring your Company into compliance.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Employee Benefits

NJ Paid Sick Leave Policy

October 9, 2018

Every employer in New Jersey, regardless of size, needs a written Paid Sick Leave policy in place and distributed to employees no later than October 29, 2018. Please contact us if you need assistance drafting this policy or updating your other personnel policies.

Whether as stand-alone policies or those accumulated in an employee manual, the following are the types of policies which must, or at the very least should, be in writing in NJ:

  1. Paid Sick Leave policy;
  2. Anti-harassment policy;
  3. Equal Employment Opportunity policy (recommended);
  4. Vacation policy;
  5. Equal Pay Act policy;
  6. Whistleblower (CEPA) policy;
  7. Family and Medical Leave Act/NJ Family Leave Act policy (for employers with at least 50 employees);
  8. Confidentiality, Non-Solicitation and Non-Compete policy; and Arbitration policy.
Now is a great time to update your company’s policies so that they can be rolled out to your employees in 2019.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Paid Sick Leave

New Jersey Sick Leave Law

June 13, 2018

New Jersey’s Sick Leave Law (the “Law”) takes effect on October 29, 2018. It establishes a uniform, state-wide law that pre-empts all municipal sick leave laws and prohibits the passage of similar, local laws.  

Who is Covered?
The Law applies to all NJ employees (full and part-time) and any business with NJ-based employees (regardless of size). The only exclusion are construction industry employees covered by a collective bargaining agreement, per diem healthcare workers, and public employees who already receive this benefit.

How is Time Accrued?
Employees accrue one (1) hour of paid sick leave for every thirty (30) hours worked, up to forty (40) hours (five days) in a benefit year. Alternatively, an employer may "frontload" the entire forty (40) hours on the first day of a benefit year (as well as implement a more generous program).

A “benefit year” is any 12 consecutive months designated by the employer. Once established, an employer may only change the “benefit year” by first notifying the NJ DOL.

Sick leave benefits begin to accrue for:

  • Current employees, who have not already accrued sick leave under an existing policy or law, on October 29, 2018 (the effective date of the Law).
  • Employees hired after October 29, 2018 on the first date of employment. New employees may be required to wait 120 days after hire before “using” earned sick leave.

Carry Over?
Employers must either (a) allow up to 40 hours to carry over from one benefit year to the next or (b) pay employees for that time. It is the employee’s choice which alternative to accept.

Existing Policy?
Employers may comply with the Law if they already offer employees paid sick leave or paid time off (“PTO”) that accrues at a rate equal to or greater than one (1) hour of leave per 30 hours worked, and the policy is otherwise consistent with the Law.

“Sick Leave” Uses?
Earned sick leave may be used for:

  • Diagnosis, care or treatment of, recovery from and/or preventative care for an employee's own, or his/her family member’s, mental or physical illness or injury.
  • Absence due to a public health emergency that caused the closure of the employee’s workplace or the school or childcare facility of the employee’s child, or that requires a member of the employee’s family to seek care.
  • Absence to obtain medical treatment, legal services or to relocate related to an employee's or his/her family member's status as a victim of domestic or sexual violence.
  • To attend any school conferences requested or required by school staff to discuss a child's health condition or disability.

“Family members” is broadly defined to include an employee’s child, spouse, domestic partner, civil union partner, parent (including adoptive, foster or step-parent, or legal guardian), sibling (including foster or adoptive siblings), grandparent or grandchild, and the parent, grandparent or sibling of the employee’s spouse, domestic partner or civil union partner. Indeed, an employee may also use their sick leave for the care of a non-related individual whose close association with the employee is the “equivalent” of a family relationship.

What May Employers Do?

  • Require up to seven (7) days advance notice if an absence is “foreseeable,” and limit the use of “foreseeable” sick leave to certain dates.
  • Request notice “as soon as practicable” if an absence is “unforeseeable,” and the employee is aware of this requirement.
  • Request documentation to substantiate sick leave, but only if an employee is absent for 3 or more consecutive days.

Employer Obligations?
Employers must:

  • Notify current employees of their rights under the Law (by posting and distributing a notice) and new employees at the time of hire.
  • Maintain records of hours worked, and used, earned sick leave for 5 years.  (Failure to do so will result in a rebuttable assumption that the employer failed to allow employees to accrue time)

Employers are subject to private claims, and the penalties and remedies contained in the New Jersey Wage and Hour Law, including fines and possible imprisonment.

Recommendations?
Employers with NJ-based employees should review and adjust their current paid time off policies to ensure compliance with the New Jersey Sick Leave Law prior to October 29, 2018. 

Attorney: Lauren Topelsohn
Related Practice: Labor and Employment
Category: Paid Sick Leave

It Is Time To Take Your Company's Temperature Concerning HR Compliance

May 29, 2018

How healthy is your Company? Does it comply with all of its obligations under ever-expanding employment laws? Considering all of the recent developments in New Jersey and New York employment law, now is an appropriate time to take your Company’s temperature.

If your Company has an employee manual, now is the time to update it especially considering that New Jersey and New York recently passed legislation dealing with paid sick leave which may impact your current sick leave policy.

As a result of the #Metoo movement, and as reported recently in this blog, there have been significant changes concerning having employees sign settlement agreements in sexual harassment cases or separation agreements containing non-disclosure/confidentiality provisions waiving these claims. Both New York and federal law have changed in this regard. It is, therefore, important to review any form releases your Company uses when terminating employees.

As also reported previously in this blog, the law also has changed concerning equal pay. In New Jersey, it will not only apply to women who are paid less than men but also all other protected classes in the New Jersey Law Against Discrimination. It is, therefore, important to take your Company’s temperature with regard to employee pay.

Lastly, based upon an executive order recently signed by Governor Murphy organizing a task force to review the issue of misclassification of workers, we expect a crackdown on employers who misclassify workers as independent contractors. Now is the time to review those relationships as well.

In summary, having experienced legal counsel help in taking your Company’s temperature now will enable your Company to avoid costly litigation not too far down the road.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Employee Benefits

NYC's Earned Safe and Sick Time Act Takes Effect

May 16, 2018

On May 5, 2018, NYC’s Earned Safe and Sick Time Act (the “ESSTA”) went into effect. It amends NYC’s Earned Sick Time Act by (a) permitting an employee to use accrued “sick leave” for “safe leave” and (b) expanding the definition of “family member.”  Employers are required to provide notice to employees by June 4, 2018. 

Under the ESSTA, employees have the right to use leave for the medical care of themselves or a family member, as well as the right to seek assistance or take other safety measures if the employee or a family member is a victim or has been threatened with domestic violence, “unwanted sexual contact”, stalking or human trafficking.

“Safe leave” includes absences to:

  • Obtain services from a domestic violence shelter, rape crisis center or other similar program
  • Participate in safety planning, temporarily or permanently relocate for safety reasons or take other actions to increase the safety of the employee or family member
  • Meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in, any criminal or civil proceeding, including but not limited to matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit
  • File a complaint or domestic incident report with law enforcement
  • Meet with a district attorney’s office
  • Enroll children in a new school; or
  • Take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or family member or to protect those who associate or work with the employee. 

“Family member” is now defined as:

  • A spouse, domestic partner, parent, child, sibling, grandparent, grandchild, or the child or parent of the employee's spouse or domestic partner
  • Any other individual related by blood to the employee
  • Any other individual whose close association with the employee is the equivalent of a family relationship

Employers with five (5) or more employees must provide up to 40 hours of paid sick/safe leave; all other employers must provide up to 40 hours of unpaid sick/safe leave.

For more information, see: http://www1.nyc.gov/assets/dca/downloads/pdf/about/Paid-Safe-and-Sick-Leave-Law-Rules.pdf

 

Attorney: Lauren Topelsohn
Related Practice: Labor and Employment
Category: Paid Sick Leave

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