Tips To Help Businesses Prepare To Re-Open

Posted by on May 4, 2020 in Covid-19

Written by: Susan L. Swatski, Esq.

As businesses are starting to re-open their doors, workers and employers need to prepare their workplaces for the new normal to try to keep everyone as healthy as possible in the new COVID-19 reality. These are challenging times to be sure and we’re here to help you navigate them by providing guidance on key legal issues to consider as you re-open your business.

1. Employer Screening of Employees for COVID-19

The Equal Employment Opportunity Commission (EEOC) recently provided guidance that expressly permits employee screening and stating that such screening does not violate the Americans with Disabilities Act (ADA) provided any mandatory medical test is job-related and consistent with business necessity. In the case of COVID-19, the virus poses a direct threat to the health of others thereby satisfying the business necessity standard. 

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The Coronavirus Aid, Response, and Economic Security Act “CARES Act”

Posted by on Mar 30, 2020 in Covid-19

Written by: Susan L. Swatski, Esq.

The following is a brief summary of the CARES Act.

Health Care

  • Clarifies that all testing for coronavirus (COVID-19) is to be covered by private insurance plans without cost sharing. The Act covers all services provided during a medical visit, including an in-person or telehealth visit to a doctor’s office or an emergency room, that results in coronavirus screening. This coverage is in effect only while there is a declared public health emergency.
  • Changes the use of health savings accounts (HSAs) paired with high-deductible health plans (HDHPs) by allowing a HDHP with a HSA to cover telehealth services prior to a patient reaching the deductible.
  • Includes certain over-the-counter medical products, without a prescription, as “qualified expenses” under HSAs, Flexible Spending Accounts, Archer medical savings accounts and health reimbursement arrangements. This benefit applies to all amounts paid or expenses incurred after December 31, 2019.
  • Allows an employee who was laid off on or after April 1, 2020 to have access to paid family and medical leave in certain instances if they are rehired by the employer.
  • Allows employers to receive an advance tax credit from the Department of Treasury instead of having to be reimbursed on the back end. Creates regulatory authority to implement tax credit advancements.
  • Amends Section 518 of ERISA to provide the Department of Labor the ability to postpone certain ERISA filing deadlines for a period of up to one year in the case of a public health emergency.

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DOL Guidance for the FFCRA

Posted by on Mar 27, 2020 in Covid-19

Written by: Susan L. Swatski

The U.S. Department of Labor (DOL) issued guidance in the form of a fact sheet for employees, a fact sheet for employers, and a Q&A document addressing critical questions on the paid leave requirements under the federal Families First Coronavirus Response Act (FFCRA). The FFCRA expanded the federal Family and Medical Leave Act (FMLA) to allow partially compensated employee leave for child care purposes related to COVID-19. The FFCRA also provided for employee paid sick leave for specific COVID-19-related reasons. The law included other measures to address the effect of the coronavirus pandemic on workers. The guidance addresses issues such as:

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New Jersey Enacts Paid Sick Leave Act Effective October 29, 2018

Posted by on May 8, 2018 in Benefits

Written by: Susan L. Swatski

On May 2, 2018, New Jersey became the tenth state to enact a mandatory paid sick leave law. The law goes into effect on October 29, 2018 and will require all New Jersey employers, regardless of size, to provide up to 40 hours of paid sick leave per year. The Act preempts and moots all municipal ordinances regarding paid sick time. Current employees will begin accruing sick time on October 29, 2018, so employers will need to have their revised leave policies in place in short order. Employees hired after October 29, 2018, will begin accruing sick time on their first day of employment. An employee can use accrued sick time after the 120th day of his/her first day of employment for the following reasons:

  • diagnosis, care or treatment of or recovery from an employee’s own mental or physical illness, including preventive medical care;
  • aid or care for a covered family member during diagnosis, care or treatment of or recovery from the family member’s mental or physical illness, including preventive medical care;
  • circumstances related to an employee’s or his/her family member’s status as a victim of domestic or sexual violence;
  • closure of an employee’s workplace or of a child’s school because of a public official’s order; or,
  • time to attend a meeting required by school staff to discuss a child’s health.

Employers may not require an employee to find a replacement to cover the employee’s absence. The payment amount is based on the same rate of pay that the employee earns at the time of the payment, not when the time was accrued.

Under the Act, employers must designate any period of 12 consecutive months as a “benefit year.”  In each benefit year, an employee may accrue up to 40 hours of sick time at a rate of one hour for every 30 hours worked. An employer may “frontload” the 40 hours of sick time at the beginning of the benefit year, but employers are not required to permit employees to use more than 40 hours of sick leave in a benefit year. Employees are permitted to carry over a maximum of 40 hours of accrued sick time. Employers may, at their discretion, buy out an employee’s unused accrued sick time in the month before the end of the benefit year. An employee has the option to either have the entire amount of unused sick time paid out or 50 percent of the time. The Act does not require the employer to pay employees for unused accrued sick leave upon separation from employment. Employers with existing paid time off, personal days, vacation days and sick-day policies may use those policies to comply with the Act provided employees can use the time off as required by the Act.

Employers must post a notification of employees’ rights under the Act and provide employees with a written copy of the notice within 30 days after the Department of Labor has issued a model notice and each time thereafter when an employee is hired. Employers also must retain records documenting paid sick time taken by employees for a period of five years.

The Act provides for a private right of action that includes, among other remedies, liquidated damages in an amount equal to the actual damages sustained by the employee. The Act also contains anti-retaliation provisions that include a rebuttable presumption that an employer’s actions are unlawful if the employer takes adverse action against an employee within 90 days of the employee engaging in activity protected under the Act. Protected activities include filing a complaint with the Department of Labor, cooperating with an investigation, opposing policies and practices that are unlawful under the Act or informing other individuals of their rights under the Act.

Your business likely will be impacted by the Paid Sick Leave Act. You should start preparing now to ensure your sick leave, paid time off and vacation policies are compliant with the Act. You should also include training on the retaliation provisions of the Act for managers and supervisors.

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EEOC Issues Fact Sheet Reminding Employers Not to Discriminate Restroom Use Based on Gender

Posted by on May 31, 2016 in Gender Discrimination, Sexual Orientation Discrimination

By: Susan L. Swatski, Esq.

North Carolina (as well as other states) has become infamous for HB-2, a law that restricts restroom use in government buildings based on the gender listed on an individual’s birth certificate, and which is directed towards transgender individuals. The law additionally prohibits municipalities from enacting anti-discrimination laws of their own.

The reaction to HB-2 has been swift and furious. PayPal and Deutsche Bank, among other businesses, are halting planned expansions into the state, and multiple cities and states across the country have implemented travel bans for government employees going to North Carolina. The National Basketball Association (“NBA”) said it will change the location of the 2017 All-Star Game if the law does not change, and a significant number of filming projects and entertainers are refusing to perform in North Carolina, which has led some experts to conclude that North Carolina will lose $77 million in revenue as a result of HB-2. Additionally, the American Civil Liberties Union filed a federal lawsuit challenging the law; the case is captioned, Carcaño v. McCrory and is pending in the U.S. District Court for the Middle District of North Carolina. Also, the United States Department of Justice and the State of North Carolina are currently in litigation over whether HB-2 violates Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972.

In response to HB-2 and similar laws in other states, the Equal Employment Opportunity Commission (“EEOC”) issued a fact sheet to remind employers that discrimination based on transgender status is sexual discrimination under Title VII of the Civil Rights Act. The EEOC’s fact sheet also reminded employers that HB-2, and other similar state laws, is not a defense to any action brought under federal laws. The EEOC’s fact sheet goes on to state, based on multiple rulings:

  1. denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sexual discrimination;
  2. an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  3. an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom.

In addition, the EEOC fact sheet warns that “gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment.”

While employers everywhere should be mindful of the EEOC’s position on this matter, it is especially important for those in states subject to laws such as HB-2, as contrary state law is not a defense against potential litigation given the federal statutes. Hill Wallack employment law attorneys are available to help navigate issues such as these and how they may affect clients in New Jersey, New York, and Pennsylvania.

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The District Court of New Jersey Rejects Class Action Certification Under the FLSA

Posted by on May 31, 2016 in FLSA

In a recent case in the United States District Court for the District of New Jersey, a plaintiffs’ motion for final certification of a collective action under the Fair Labor Standards Act was denied. At its core, Plaintiff Fred Adami and two remaining Opt-In Plaintiffs alleged that their employer, Cardo Windows, Inc. mischaracterized them as independent contractors, rather than employees, and asserted claims for unpaid overtime.

Judge Simandle found that while the Plaintiffs properly alleged common employer practices, they failed to sufficiently demonstrate the similarity between the circumstances of their employment. For example, while Adami was a long-time employee that was at the core of Cardo’s operations, the Opt-In Plaintiffs “worked sporadically and had differing work environments from Adami.” Adami v. Cardo Windows, Inc., No. 12-2804 (JBS/JS), 2016 WL 1241798, at *2 (D.N.J. Mar. 30, 2016).

Specifically, Adami and the Opt-In Plaintiffs worked a considerably different number of hours, which changed on an individual basis. Schedules varied based on customer needs, and the Opt-In Plaintiffs could take breaks when they wished. In addition, Defendants noted that the Opt-In Plaintiffs were entitled to hire “helpers” for each project, and were able to choose both the number and how much each were paid, which changed the profit or loss for each Opt-In Plaintiff. Lastly, while Adami worked for Cardo for approximately ten years, the Opt-In Plaintiffs had worked at the company for just a few months. Subsequently, the Court found that while Adami’s employment relationship had been described in significant detail, there was a considerable amount of evidence that showed Adami’s employment was “the exception rather than the rule.” Adami, 2016 WL 1241798, at *6.

In so finding, the Court applied the “circumstances of the whole activity” test to determine whether an employment relationship existed and noted that it is the plaintiff’s burden to show by a preponderance of the evidence that “all members of the class are all employees covered by the FLSA.” Id. (emphasis in original).

Ultimately, Judge Simandle held that the Opt-In Plaintiffs were closer to independent contractors than employees. As such, the circumstances of each Opt-In Plaintiffs’ employment were too dissimilar for a collective action.

Employers should consider the similarity between their employees’ work, and the degree to which the company controls the day-to-day actions of its employees to determine if they are truly employees or independent contractors. Hill Wallack employment law attorneys are available to help navigate these options and how they may affect clients in New Jersey, New York, and Pennsylvania.

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New Jersey Senate Fast Tracks Paid Sick Leave Bill

Posted by on Feb 24, 2016 in Benefits

Currently, there is no New Jersey state law requiring private sector employers to provide employees with paid or unpaid sick leave. However, the New Jersey State Senate has fast tracked legislation, Bill 799, to impose a mandatory sick leave requirement on private employers.  S-799 stipulates that all companies, regardless of size, would have to provide at least five, and as many as nine, sick days per year to all of their employees – even part-time workers.   More specifically, the Senate bill would require employers to grant workers an hour of paid sick leave for every 30 hours worked.  Workers at businesses with fewer than 10 employees would be able to accrue up to 40 hours of sick time that could be carried over from one year to the next.  Employers with 10 or more workers would be required to allow them to accrue and carry over up to 72 hours of sick leave.

At least nine municipalities in New Jersey already require some form of mandatory sick leave. For example, private employers within the city limits of Jersey City with 10 or more employees are required to provide up to 40 hours of paid sick leave per calendar year to eligible employees.

This debate in New Jersey is taking place amid a growing interest nationwide for paid sick leave, exemplified by an executive order issued by President Obama on Labor Day that requires federal contractors to provide employees with paid sick leave.

Employers should stay abreast of developments on this bill which, if passed, would require employers to rewrite their existing sick leave policies and perhaps rethink their vacation and other leave policies. Employers who operate in multiple states should also follow changes in local and state laws, as other jurisdictions and cities, Philadelphia, for example, have enacted paid sick leave laws which may affect out- of-state employers operating within their jurisdictional limits.  Hill Wallack employment law attorneys are available to help navigate paid sick leave laws and how they may affect clients in New Jersey, New York, and Pennsylvania.

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