Labor & Employment Articles by Lisa Gingeleskie

As businesses reopen under COVID-19, it is imperative employers develop a plan that takes into account physical and behavioral modifications to the workplace, employee health screening protocols, workers’ compensation claims, employee accommodations and other considerations.  There is no “one-size-fits-all” approach and employers must tailor their plans to evolving federal, state and local requirements as well as the nature of their specific business.

Physical and Behavioral Modifications

The Occupational Safety and Health Administration (“OSHA”) mandates employers to provide workplaces “free from recognized hazards that are causing or likely to cause death or serious harm,” including occupational exposure to COVID-19.  Therefore, when reopening employers must implement changes to the physical layout and behavioral/hygiene protocols aimed at preventing the spread of the virus.

On March 26, 2020, Governor Murphy signed into law S-2304 expanding the scope of the New Jersey Earned Sick Leave Law, the New Jersey Family Leave Act, and the New Jersey Temporary Disability Benefits Law to broaden benefits available to employees who are absent from work due to epidemics such as the coronavirus (COVID-19) pandemic.  These changes, as set forth more fully below, became effective immediately.

New Jersey Earned Sick Leave Law

Under New Jersey’s Earned Sick Leave Law, employees may use earned sick leave for absences related to, among other reasons, the 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”.

It has been nearly two years since the viral #MeToo tweet that sparked a national debate about sexual harassment in the workplace. While #MeToo has not changed the legal standard by which sexual harassment is defined in New Jersey, it has had a dramatic impact on the way sexual harassment is perceived and tolerated in our culture. Perhaps the movement’s biggest impact can be seen in the passage of both federal and state legislation aimed at providing greater protections to victims of workplace sexual harassment. This article takes a closer look at these legislative initiatives as well as potential changes on the horizon.

Federal Legislation

2017 Tax Cuts & Jobs Act

Originally published in the November 21, 2018 issue of ROI-NJ.

According to statistics, women in New Jersey are paid 82 cents for every dollar paid to men. Until recently, New Jersey’s pay equity protections mirrored those of the Federal Equal Pay Act of 1963, mandating equal pay for men and women performing “equal work.” Under these laws, pay disparities could only be justified if the differential was based on a bona fide seniority or merit system, or “any factor other than sex,” an exception that gave employers significant room to defend wage disparities by pointing to the applicant’s pay history or other factors unrelated to gender.

With the passage of the Diane B. Allen Equal Pay Act in March 2018, New Jersey now takes a more aggressive approach towards eradicating pay disparities. While principally aimed at the gender wage gap, the act applies to all protected classes, thereby paving the way for disparate wage claims on the basis of race, age and any other status protected by the New Jersey Law Against Discrimination. In addition, employees can point to higher rates being paid to counterparts outside the protected class who are engaged in “substantially similar work,” as compared to the narrower “equal work” standard under prior law. “Substantially similar work” will be viewed “in light of the employees’ skills, effort and responsibility.” Because there are no regulations interpreting this ambiguous phrase, employers must look beyond mere job titles to all aspects of all positions to identify those that involve “substantially similar work.”

Effective January 8, 2018, the New Jersey Law Against Discrimination (“NJLAD”) was amended to include breastfeeding as a protected category. Under the amended law, employers must provide nursing mothers with reasonable breaks during the work day and a suitable private location close to the employee’s work area to express milk for her infant child. The only exception to this requirement to accommodate is when doing so would place an undue hardship on the employer’s business. When considering whether or not an undue hardship exists, the court will look to the following factors:

• The overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of the budget;
• The type of the employer’s operations, including the composition and structure of the workplace;

Similar to other federal anti-discrimination laws, the Americans with Disabilities Act (ADA) expressly prohibits employers from discriminating against employees on the basis of disability. The ADA, however, is unique in that it requires an employer to provide a reasonable accommodation to its disabled employees.

Ordinarily, it is up to the employee to request an accommodation for his or her disability. In order to do so, the employee may verbally advise that he or she needs an adjustment, change, or assistance at work and that this need is related to a disability. In spite of this formality, there are other ways an employer may become obligated to provide an accommodation even in the absence of a formal request. For that reason, employers should learn to identify specific circumstances in which an employee may require an accommodation. For example, if the employer knows of the employee’s disability, sees the employee struggling to access existing facilities or notices that the disability itself prevents the employee from requesting the accommodation, the employer should initiate a conversation with the employee to determine whether an accommodation is necessary.

Once an employee has requested an accommodation or the employer has identified its obligation to provide an accommodation, the employer should strive to diligently address the need of an accommodation by way of clear and constant communication. This form of communication is referred to as the “interactive process” under the ADA. The interactive process and is an informal practice in which the covered individual and the employer determine the precise limitations created by the disability and how best to respond to the need for accommodation.

Employees impaired by drugs or alcohol impact workplace safety, as well as productivity. Therefore, private employers may choose to implement drug and alcohol testing program as part of an effort to maintain the safety and health of their workplace. There is no New Jersey statute that currently regulates how or when employers may test employees or applicants for drugs and alcohol. The New Jersey Supreme Court in 1992 decided the case of Hennessey v. Coastal Eagle Point Co., which has become the most-cited authority on the issue thus far. Hennessey strongly implies that common law privacy rights forbid “random” drug testing in the private sector except for employees in “safety-sensitive” positions. Employees in other positions may be tested only “for cause,” and all testing programs must conform to certain procedural due process safeguards discussed in more detail below.

SOLUTION: Generally NJ employers may conduct drug and alcohol testing under the following circumstances:

• Pre-employment testing: Courts have adopted the distinction that job applicants have lesser privacy rights than those of current employees. Therefore, New Jersey law allows employers to test employees for unlawful drugs before employment begins. Nonetheless, applicant testing programs should be in writing and applicants’ signed consent forms should be obtained prior to any testing. However, because alcohol testing is considered a medical examination under the Americans with Disabilities Act, an employer cannot request a job applicant to undergo alcohol testing before a conditional offer of employment is made.

Discrimination is one of the most significant areas of legal exposure for employers. Employers face potential liability for discrimination claims throughout every stage of the employment relationship. Avoiding employment liability requires sensitivity to a wide variety of legally protected characteristics, including race, color, religion or creed, national origin or ancestry, age, physical or mental disability, sex (including gender and pregnancy), marital status, civil union status or domestic partnership status, familial status, affectional or sexual orientation, gender identity or expression, veteran status, and genetic information.

Most employers are subject to federal and state laws prohibiting employment discrimination, but not all employers appreciate the related legal risks. In 2015, the Equal Employment Opportunity Commission (EEOC) reported 89,385 total individual charges alleging discrimination. These numbers are likely to remain high, in part, because claimants may be awarded significant sums without a great deal of personal cost. In contrast, employers sued for discrimination violations often face large financial losses. It is common for employers to pay thousands of dollars in legal fees defending against meritless claims and thousands more settling well-founded claims.

Solution: Employers can minimize the risk of legal exposure by understanding the legal basics and taking the following preventative measures during the employment relationship.

You may recall an earlier discussion of at-will employment in the context of employee handbooks where we defined at-will employment as meaning that either the employee or employer may terminate the employment relationship at any time and for any non-discriminatory reason. In contrast, a for-cause employment relationship can only be terminated for a reason specified in an employment contract as grounds for termination.

Although employees are generally presumed to be at-will, employers should be mindful of unintentionally converting an otherwise intended at-will employment relationship to a for-cause employment relationship. This conversion can happen simply by making oral or written statements suggesting job security, permanent employment, or that a job will be available provided the employee performs their job, during the recruiting or interviewing process. The risk also exists when applying inflexible discipline policies, particularly progressive discipline policies to at-will employees. Disciplinary policies that allow for discipline only under specific circumstances or through progressively rigorous disciplinary steps may inadvertently modify at-will employment status.

Solution: Be Careful to Avoid Converting an At-Will Relationship into a For-Cause Employment Relationship.

Although there is no federal law requiring private employers to provide handbooks to their employees, there are numerous reasons for employers to do so, including:

• Providing an opportunity to formally welcome new employees, introduce the organization and explain expectations;
• Grouping various employment policies together in a handbook makes it easier for an employer to ensure that each employee receives copies of all relevant policies;