Articles Posted by Insights

In November 2020, by a vote of 67.08% to 32.92%, the voters of New Jersey passed a ballot measure to amend New Jersey’s Constitution to make use of recreational marijuana by those over age 21 legal in New Jersey beginning on January 1, 2021. However, until legislation is signed by the Governor and rules and regulations are issued by the Commission, the details on legalization and the cannabis industry rollout are hazy.  And, what may be worse for New Jersey employers, is the considerable uncertainty regarding how they can maintain a drug free workplace.

When will recreational marijuana become legal?

With voter approval to legalize weed, it is clear that there exists considerable pressure to quickly pass legislation which explains how New Jersey’s recreational marijuana program will roll out. And while some might suggest that recreational marijuana became legal in New Jersey on January 1, 2021, because the ballot measure contemplated a highly regulated and taxed recreational cannabis market, most agree that recreational marijuana is not, in fact, legal until New Jersey’s recreational marijuana law and regulations are enacted.

In our December 11, 2020 publication found here, we explored the ability of employers to mandate COVID-19 vaccinations in the workplace. In short, in the absence of federal or state laws to the contrary, employers are free to mandate vaccinations.

On December 16, 2020 the EEOC issued guidance that paved the way for employers to mandate vaccinations without fear of violating the Americans with Disabilities Act (the “ADA”), Title VII and other federal law.  The provisions of the new guidance are outlined below.

Vaccinations are not “medical examinations” under the ADA.

Federal and State law require nonexempt employees to be paid time and one half their regular hourly wage for hours worked in excess of 40 hours in any given workweek.  Overtime is calculated based on an employee’s regular hourly wage.[1] Assuming there is no contract or other obligation imposed by Federal or State law, there is no requirement that a nonexempt employee be paid premium overtime compensation for hours worked in excess of eight hours per day, nor for work on Saturdays, Sundays, or holidays, other than the requirement of overtime for over 40 hours per week.

Who Qualifies as a Nonexempt Employee Eligible for Overtime Pay?

Not all employees qualify for overtime pay.  Generally, individuals employed in bona fide executive, administrative, or professional capacities are exempt from Federal and State overtime requirements under the so-called “white collar” exemptions.  Qualification for exemption is not determined solely by an employee’s title, job description or the fact that the employee is paid on a salary as opposed to hourly basis.  Rather, to qualify for this exemption, the employer must show that the employee satisfies both a “salary basis” test and a “duties” test.  Because the burden is on the employer to demonstrate that the exemption applies, it is critical that employers conduct a thoughtful and careful analysis when classifying an employee as exempt.

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In response to the pandemic, Congress passed the Families First Coronavirus Response Act (the “FFCRA”) that provided up to 10 days of emergency paid sick leave for COVID-related absences and up to 12 weeks emergency paid family leave to care for a child in the event of a COVID-related school or daycare closure.  These benefits went into effect in April 2020 and will terminate on December 31, 2020.

Many speculated that Congress would extend the FFCRA benefits to provide continued relief to individuals and families still grappling with work-related absences caused by the ongoing pandemic.   Cases have spiked in many areas and schools continue to provide remote learning.  Although the Consolidated Appropriations Act (the “Act”) signed by President Trump earlier this week provides various pandemic relief programs, the Act did not extend the expiration date of the FFCRA.

The Consolidated Appropriations Act’s extension of FFCRA Tax Credits for Employers.

On December 17, 2020, the New Jersey legislature passed the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (the “Act”), providing the framework for legal adult recreational cannabis use in New Jersey.  The Act lays out the ground rules for licensing arrangements for the cultivation, packaging, distribution, advertising, and retail sale of recreational cannabis to persons 21 years old or older.  It is important to note that the passage of the Act does not immediately make “street pot” legal—instead, it provides the roadmap for businesses to become licensed so that they may take part in the future legal adult recreational cannabis market in New Jersey.  Cannabis, however, will no longer be a Schedule 1 controlled dangerous drug under New Jersey law (although it remains so at the Federal level).

Although the Act is over 200 pages long, it still requires that the New Jersey Cannabis Regulatory Commission (“CRC”) develop regulations to flesh out the details of how these arrangements will all be put into practice.  For example, there are currently no application forms to apply for any license to operate in the cannabis market in New Jersey.  These forms, their instructions, and a host of other details all need to be developed before any business can apply for one of the required licenses.  The CRC has been given 180 days to develop these enabling regulations and forms.  That said, individuals and businesses interested in entering into this market will want to keep apprised of the details of these ongoing regulatory developments so that they can position themselves to have already put arrangements in place which will allow them to immediately move forward with the application process as soon as it becomes available.

The Act is quite lengthy, and covers a broad range of areas relevant to the development of the legal adult recreational cannabis market and related social justice issues.  The following is not an attempt to fully summarize the Act, but instead simply covers in broad strokes some of the main elements of the arrangements provided for in the Act relevant to businesses that wish to enter into the market.

As the pandemic enters its tenth month, employers have had to adjust to significant interruptions to the workplace and the new mandates under the Families First Coronavirus Response Act and other state law protection to individuals and families impacted by the virus.   Now that several pharmaceutical companies are about to rollout COVID-19 vaccines, employers are facing a new dilemma – whether private employers can mandate employees get vaccinated and, if so, should they do so?

Although it is questionable whether the federal government has the authority to mandate vaccines, President Elect Joe Biden has stated that he does not intend to make vaccinations mandatory, preferring to implement programs to encourage voluntary vaccinations.   Dr. Anthony Fauci has likewise expressed his objection to compulsory mandates.   On the other hand, mandatory vaccinations can be imposed on the state level but to date states have not expressed a firm intention to go this route.   As with influenza, the CDC recommends individuals get the COVID-19 vaccination when it becomes available, especially healthcare workers, but does not issue any mandates to the healthcare systems.

According to the Pew Research Center, four out of ten Americans indicate that they would likely not opt for vaccination due to concerns over the unprecedented speed of the vaccine’s development and its untested long term safety record.

In the latest article for WealthManagement.com, the Honorable Judge Katherine Dupuis, (Ret.) of Lindabury’s Alternative Dispute Resolution Practice Group offers insight on how mediation can be a viable way to achieve cost savings and justice during estate-planning disputes. This write-up addresses both what can go wrong and how to move forward through the process. To read it in its entirety, click here.

On the heels of the victory of the recreational marijuana referendum at the polls, the New Jersey Senate and Assembly moved swiftly to introduce proposed legislation regulating the use, licensing and taxation of marijuana.    As of this writing the Legislature was close to sealing a deal and a vote could come as early as December 18, 2020.   Despite the fact that marijuana use in the workplace has significant consequences for employers, especially those with high populations of safety sensitive workers, the most recent version of the bill is long on employee protections and short on protections for employers.

Preserved Employer Rights.  Similar to the earlier Jake Honig Compassionate Use Medical Cannabis Act affording workplace protections to medical marijuana users, the proposed legislation provides that nothing in the Act shall be deemed to:

  1. Restrict or preempt an employer’s right or obligation (as required for federal contractors) to maintain a drug- and alcohol-free workplace;

In the face of mounting COVID-19 infection rates throughout the country, on December 4, 2020 the CDC issued a recommendation for the universal use of facemasks in indoor spaces as well as outdoor spaces when 6 feet of social distancing cannot be maintained.   In addition, the CDC recommends the wearing of facemasks within households when a member of the household has been infected or had a potential exposure to the virus.   The CDC noted that the proper use of facemasks is critical to reducing the spread of the virus “particularly in light of estimates that approximately one half of new infections are transmitted by persons who have no symptoms.”

The CDC also urges that exposures to “nonessential indoor settings and crowded outdoor settings pose a preventable risk to all participants” and urges continued prevention strategies such as take away service, outdoor dining and gatherings, if social distancing can be maintained, and the continued promotion of teleworking and other flexible work arrangements.

The CDC observed that increased testing, diagnosis and isolation should be implemented to interrupt the “silent transmission” of the virus from asymptomatic and pre-symptomatic persons, as well as case investigation and contract tracing to identify, quarantine and test close contacts.

Until now, the CDC recommended a 14-day quarantine for individuals who might have had “close contact” with a person who has or is suspected of having COVID-19.[1]   This quarantine was longer than the 10-day recommendation for those who test positive, as the longer quarantine period is based on estimates of the upper boundaries of the viral incubation period.  However, in its new guidance issued December 2, 2020, the CDC acknowledged three adverse consequences of the 14-day quarantine:

  • It can impose personal burdens that may affect physical and mental health as well as economic hardship that may reduce compliance.
  • It may pose additional burdens on public health systems and communities, especially when cases are rising and the need to impose quarantines are rapidly rising.
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