Tips To Help Businesses Prepare To Re-Open

Posted by on May 4, 2020 in Uncategorized

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 Uncategorized

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 Uncategorized

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 Uncategorized

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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NJ Employment Law Alert – Equal Pay Act Amends NJ LAD

Posted by on Apr 30, 2018 in Uncategorized

By: Jeffrey H. Schervone

On April 24, 2018, New Jersey Governor Phil Murphy signed into law the Diane B. Allen Equal Pay Act (the “Act”), which amends the New Jersey Law Against Discrimination (“LAD”). A copy of the bill’s text is available here.

Under the amended LAD, it is an unlawful employment practice for an employer to pay any employee who is a member of a protected class less than the rate paid to other employees who are not members of that protected class for “substantially similar work when viewed as a composite of skill, effort and responsibility.” Note that the Act is much broader than just remediating gender pay equity. Instead, the Act expands equal pay on the basis of membership in the protected class which includes, inter alia, race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or liability for service in the armed forces.

The Act does, however, carve out limited exceptions concerning when an employer may pay a different rate of compensation to members of the protected class, including if the pay differential is due to a seniority or merit based system.  An employer may also pay different rates to individuals if they can demonstrate each of the following:

1. That the differential is based on one or more legitimate, bona fide factors other than the characteristics of members of the protected class, such as training, education or experience, or the quantity or quality of production;

2. That the factor or factors are not based on, and do not perpetuate differential in compensation based on sex or any other characteristic of members of a protected class;

3. That each of the factors is applied reasonably;

4. That one or more of the factors account for the entire wage differential; and

5. That the factors are job-related with respect to the position in question and based on a legitimate business necessity.

Importantly, the Act also prohibits retaliation against an employee who inquires about pay information with other employees, lawyers in connection with legal advice, or government agencies.  The Act goes even farther in prohibiting waivers of such inquiries as a condition of employment.

Regarding damages, the lookback period for ‘unequal’ back pay is 6 years, and “if a jury determines that an employer is guilty of an unlawful employment practice… the judge shall award three times any monetary damages to the person or persons aggrieved by the violation.”

The law goes into effect on July 1, 2018.  Employers should carefully review and audit their policies, procedures, handbooks to ensure compliance.

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Posted by on May 16, 2017 in Uncategorized

Written by: Katrina M. Homel

Is your employment handbook up-to-date? Employment law is an ever-changing field, and community associations, management companies, and employers of all sizes will avoid a later headache by taking the time to review and revise their handbook to reflect recent updates in employment law.

Employee handbooks set forth an employer’s policies and procedures so that there are clear expectations for the employment relationship between the employer and employee. The handbook is not an implied contract, nor is it intended to be comprehensive of every possible situation that may arise in the workplace, though it sets expectations that guide conduct in new situations that may arise. Handbooks address the core terms and conditions of employment including, for example, the nature of the employment relationship, employees’ conduct in the workplace, the employer’s response to misconduct, management of pay and benefits, and general operating procedures. An employer should require employees to review the handbook and sign a statement that they received and agree to read the handbook, that the handbook is not a contract, that it is subject to change at any time at the employer’s discretion, and, importantly, that the employee agrees to follow policies and procedures set forth in the handbook.

Community associations, management companies, and other employers should review their handbook to ensure that they are current and not operating out of compliance with the law. Recent developments in employment law include, but are not limited to, developments in the areas of social media, wage and hour, whistleblower protection, employee privacy, antidiscrimination, disability accommodations, and labor relations. Having an up-to-date handbook will go a long way to protecting the employer and maintaining a smoothly run workforce. Employers with handbooks already in place should revisit the standards and criteria established in the handbook and revise them to reflect current laws and employment practices. Employers without handbooks are urged to consider investing in the protections that a handbook can provide.

For management and lower-level employees, an employee handbook is a helpful resource to answer many questions that may arise in the workplace. For employers, a handbook provides numerous benefits in addressing employee situations. Even small employers with just a few employees are subject to many employment laws, and will benefit from having a handbook that creates consistent expectations for staff.

Clearly written and enforced policies may reduce the risk of liability and will help employers guard against claims of discrimination and unfair treatment.  For example, an employer who can point to a clear anti-harassment policy which has been read and acknowledged by all employees and which is consistently enforced has demonstrated a commitment to legal compliance and can show the steps it has taken to protect its employees and business.

An employee handbook also provides community associations, management companies, and other employers a concrete mechanism to hold employees accountable to follow the employer’s policies. Where policies are clearly communicated in the handbook, an employer can point to its policies in counseling and, if appropriate, disciplining an employee who has failed to meet those expectations.

Additionally, having a handbook in place may be helpful to an employer when it is time for an employee’s performance review, such as in situations where an employee’s conduct is impacting his or her job performance. For example, if an employer has set clear expectations in its handbook regarding lateness and attendance, and an employee’s lateness is impacting his or her job performance, when the time comes around for the employee’s performance review, the employer can point to its policy regarding lateness and attendance during its discussions with the employee about performance.

Having and maintaining an up-to-date employment handbook sets clear expectations for employees so that community associations, management companies, and other employers may operate an efficient and productive workplace, and provides protections for an employer should a workplace conflict arise.

This article is for informational purposes only and does not constitute legal advice or a legal opinion. If you have questions about recent developments in employment law and their impact on your employment practices and handbook, please contact us.  Hill Wallack LLP’s Employment & Labor Law attorneys have vast experience in counseling employers, including, but not limited to, regarding their policies and handbooks.

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Federal Court Permits Employer to Fire Transgender Employee

Posted by on Sep 6, 2016 in Gender Discrimination, Supreme Court, Title VII

In 2014, the Supreme Court of the United States ruled in Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014), that closely-held corporations are exempt from laws to which its owners object on religious grounds, if there is a less restrictive means of furthering the law’s interest. In Burwell, David and Barbara Green owned a family business, Hobby Lobby, and objected to provisions within the Patient Protection and Affordable Care Act (“PPACA”), more commonly known as the “Affordable Care Act” or “Obamacare,” that would have required them to pay for employee insurance coverage that provided access to contraceptives. This controversial decision was hailed by some as a victory for religious freedom, and simultaneously condemned by others as expanding previous Supreme Court decisions that treat corporations like people, notably, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

More recently, the Honorable Sean F. Cox, U.S.D.J. of the United States District Court for the Eastern District of Michigan, ruled on the defendant’s motion for summary judgment in Equal Employment Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 2016 WL 4396083 (E.D. Mich. Aug. 18, 2016), holding that the Supreme Court’s decision in Burwell meant a closely-held corporation could fire a transgender employee who, while transitioning from male to female, wished to begin dressing as a female. Notably, Judge Cox interpreted the Religious Freedom Restoration Act of 1993 (“RFRA”), in accordance with the Burwell decision, to mean that the sincerely held religious beliefs of a corporation provide an exemption to state and federal law unless the government can show a need to advance a compelling interest and that the requested means is the least-restrictive method of protecting such an interest. Accordingly, Judge Cox held that employers could terminate employees for the reasons described below.

In Harris, the EEOC argued that an employee’s right to not be discriminated against on the basis of transgender status or gender identity was protected by Title VII of the Civil Rights Act of 1964, which prohibits employers from discharging or otherwise discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Judge Cox stated that enforcement of Title VII would impose a substantial burden on the corporation’s ability to conduct business in accordance with its sincerely held religious beliefs, in violation of RFRA, and the EEOC’s demand of allowing the employee to wear women’s attire was not the least-restrictive method of protecting the employee’s interest in not being discriminated against.

Notably, Judge Cox pointed out the employer’s mission statement, which points to “its highest priority” as “honor[ing] God in all that we do as a company and as individuals,” as evidence of their sincerely held religious beliefs. In contrast, Judge Cox noted the employee’s desire to dress “in a stereotypical feminine manner (wearing a skirt-suit),” which would allow for gender expression, and that the EEOC refused to consider whether the employer would be willing to accept gender-neutral attire that still allowed for gender expression. As a suggestion, Judge Cox proposed a “dark-colored suit, consisting of matching business jacket and pants, but without a neck tie.”

Given Citizens United, Burwell, and now Harris, there appears to be a trend of federal case law indicating that corporations may be treated like individuals, and that the religious beliefs of a closely-held corporation’s owners can override federal protections against discrimination. As it appears likely that the EEOC will appeal this decision to the United States Court of Appeals for the Sixth Circuit, both employers and employees should continue to track its progress through the legal system.

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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