FAQs For New Jersey Employers Navigating the Coronavirus

  1. Can I require an employee to stay home if they have any symptoms of the coronavirus? Yes, as with any illness, employers are permitted to instruct employees who appear to be ill to remain at home to protect workers and the general public.
    • Do I have to continue to pay the employee’s wages?  No, this may be done at the election of the employer.  If an employer elects to pay the employee, it is free to place a cap on payment, e.g., not to exceed a 14-day quarantine period. Alternatively, the employer can consider permitting the employee to work from home, if possible.   See Question 4 below for further information.
    • What about the employee’s earned sick leave benefits?  New Jersey Earned Sick Leave Law permits all employees to accrued paid sick time.  In this situation, the employee is symptomatic and may be required to use any accrued earned sick leave benefits.  If the employer opted for a Paid Time Off (PTO) bank that incorporate earned sick leave benefits, the employee may be required to exhaust PTO time during the absence.
    • What about accrued vacation, personal days or other paid time off benefits if earned sick leave benefits are exhausted? First, employers must check their policies to see if they prohibit the use of vacation and personal days for sick purposes.  If they do not, employers may require employees to use accrued vacation or personal days for the absence.  Alternatively, the employer can permit the employee to elect using vacation and sick time during the absence.  The elective option will undoubtedly have a more positive impact on employee relations.
    • What about a return to duty?  As with any other illness, the employer may require the employee to submit medical clearance from a physician.  However, given the magnitude of the virus, employees may be unable to secure clearance; in this case, the employee can be permitted to remain home for a quarantine period of 14 days and permitted to return if they remain asymptomatic.
    • FMLA leave rights. Employers with 50 or more employees are covered by the federal Family and Medical Leave Act.  Assuming that the employee’s illness is eventually diagnosed as “a serious medical condition,” the employer should consider placing the employee on an FMLA leave if all the eligibility requirements are met. These employees should be advised of the availability of temporary disability benefits through the State.
  2. Can I mandate an employee to stay home if they had close contact with or live with an individual diagnosed with the coronavirus? Yes, to protect workers and the general public from infection. However, if you consider permitting the employee to work from home, see Question 4 below.
    • Do I have to pay the employee? Generally, employers are not required to pay employees for days not worked.  Whereas the individual is not being sent home because they are ill and this action is being taken as a precautionary measure, we recommend that the employer consider the following with respect to the payment of wages during the absence.  First, employers must weigh the employee relations implications of not paying employees compelled to remain out of work even though they show no symptoms of the illness.In addition, employees who know they will not be paid will be less likely to disclose exposures, thereby heightening the risk of spreading the infection. Finally, these employees could advance a claim that they were perceived as being disabled in violation of state and federal disability discrimination laws, an argument that has yet to be tested in the courts. To alleviate these concerns, employers may want to consider payment for all or part of the absence (up to a capped amount) if economically feasible.If the employer elects not to pay the employee, keep in mind that asymptomatic exempt personnel who are compelled to stay home must be paid their full weekly salary if they worked any portion of that workweek; salary can only be held for absences for a full workweek Hourly employees need only be paid for hours worked. The employer should consider having these employees work from the home if possible. See Question 4 below for further guidance.
    • What about the employee’s earned sick leave benefits? Because in this situation the employee is not known to be ill and is being kept out of the workplace as a precautionary measure, these employees cannot be compelled to use earned sick leave or PTO if the employer has a PTO bank that incorporates earned sick leave.  However, under these circumstances, employees may be permitted to exhaust these benefits upon request.
    • What about accrued vacation, personal days or other paid time off benefits? Subject to the exception discussed in the last bullet point of Question (2) below, employers may require employees to use accrued vacation, personal days or other non-sick paid time off benefits during this compulsory absence, but for the reasons stated above, there may be employee relations consequences for doing so. Permitting the employee to elect these paid time off benefits rather than compelling exhaustion would be more favorable from an employee relations perspective.
    • What about a return to duty? The employer may be permitted to return to duty with a medical clearance from a physician or after the completion of the 14-day quarantine period if they remain asymptomatic.
    • FMLA and NJFLA leave rights. Employers with 50 or more employees are covered by the FMLA, and those with 30 or more are covered by the New Jersey Family Leave Act.    If the employee is taking care of a family member who is  eventually diagnosed as “a serious medical condition,” the employer should consider placing the employee on an FMLA and/or NJFLA leave if all the eligibility requirements are met.  These employees should be notified that they may be eligible for state Paid Family Leave Insurance benefits but note that employers cannot compel employees to exhaust paid time off benefits before applying for Paid Family Leave Insurance. In these circumstances, it is the employee’s option to exhaust paid time off benefits.
  3. Can I mandate an employee to stay home if they had traveled abroad? If the employee traveled to a country designated by the Center for Disease Control as having a Level 3 Travel Health Notice may be required to remain home.   However, if you consider permitting the employee to work from home, see Question 4 below.
    • Do I have to pay the employee?  See response to the first bullet point of Question (2) above.
    • What about the employee’s earned sick leave benefits? See response to the second bullet point of Question (2) above.
    • What about accrued vacation, personal days or other paid time off benefits? See response to the third bullet point of Question (2) above.
    • What about a return to duty? See response to the fourth bullet point of Question (2) above.
  4. Can I require these employees to work out of the home if they are able to do so? Yes, so long as you pay hourly employees for all hours actually worked during the absence from the workplace.   If hourly employees are permitted to work from home, employers should promulgate and communicate work rules concerning the reporting of hours worked from home including overtime pre-authorization requirements.   In the case of exempt employees, they must be paid their full salary for any week in which they performed any work from the home.
  5. What are my obligations if an employee is asymptomatic and has not had any known exposure to the virus (therefor doesn’t fall into categories 1-3 above) but they nevertheless request to stay home for fear of catching the virus?  The employer can deny such a request but may want to consider the negative effects on workers’ morale if these employees are compelled to work.  If you consider permitting the employee to work from home, see Question 4 above.
    • If the employee is permitted to stay home but cannot work from the home, do I have to pay the employee? In this situation, the decision to stay home is entirely elective on the employee’s part, and all employees (hourly and exempt) need not be paid for this absence.   If an employer elects to pay the employee, it is free to place a cap on the number of days that will be paid.
    • What about the employee’s earned sick leave benefits? For those employees who maintain earned sick leave policies that only permit employees to use accrued time for personal or family illnesses, the employer may not compel the employee to use the sick leave because the employee is not ill. However, for those employers who opted for a PTO bank that incorporates paid sick leave and employees are free to use for any purpose, employees may be required to use PTO time during the absence. However, employers may permit employees to make this election.
    • What about accrued vacation, personal days or other paid time off benefits? Because the absence is entirely at the election of the employee, the employer can mandate that these employees use all other accrued paid time off benefits. However, employers may permit employees to make this election.
  6. What are my obligations if I decide to temporarily close the business?
    • Can I mandate that some essential employees continue to work from home? Yes, so long as they are paid as discussed above for the hours worked.
    • Must I pay those employees who are not working from home? Hourly and non-exempt employees need not be paid during a closure, but consideration should be given to the employee relations impact of a no-pay situation discussed in the first bullet point of question (2) above. If the closure occurs during a workweek, exempt employees must be paid for the balance of the workweek.  If the closure is for an entire workweek, exempt employees need not be paid, but if business is resumed during a workweek, exempt employees must be paid for the full workweek.
    • What about the employee’s earned sick leave benefits? Because the employee’s inability to work is not due to illness, these employees cannot be compelled to use earned sick leave or PTO if the employer has a PTO bank that incorporates earned sick leave.
    • What about accrued vacation, personal days or other paid time off benefits? Employers may require employees to use accrued vacation, personal days or other non-sick paid time off benefits during this compulsory absence, but for the reasons stated in third bullet point of question (2) above, there may be employee relations consequences for doing so. Employers should consider making this optional.
    • Are furloughed employees eligible for unemployment benefits? New Jersey employees may be eligible for unemployment benefits after a seven-day waiting period. Employers should remind employees of the availability of these benefits.
    • What about the Federal and NJ WARN Acts? Under the federal and New Jersey WARN acts, covered employers with 100 employees or more must comply with certain notice and other requirements in the event of a business closure that affects large numbers of employees. However, these statutes are implicated where the employer implements a mass layoff with no commitment to reinstate the employee within a six-month period, so WARN Act obligations are not triggered for these temporary furloughs.  WARN Act requirement may be triggered if the employer closes for more than 60 days or had a permanent closure.
  7. Are any OSHA requirements implicated by the coronavirus? OSHA requires employers with 10 or more employees to keep a log of every illness that requires medical treatment beyond first aid or absences beyond one workday.  Although minor illnesses such as the cold or flu need not be tracked, OSHA issues  guidance in early March equating the coronavirus to illness that require tracking, such as tuberculosis and hepatitis A.   Given the shortage of testing for the virus, the challenge facing employers is determining whether the employee is actually in infected with the coronavirus as opposed to the common cold or flu, and whether the infection occurred at the workplace,   If the employer is aware of a positive test for the virus and facts that suggest the infection occurred in the workplace, tracking requirement are triggered.
  8. What About School and Childcare Closures?  The New Jersey Earned Sick Leave Law  includes closures of schools by governmental officials as well as childcare facilities as qualifying events for the use of accrued sick leave benefits.   Employees therefore can use any accrued earned sick leave for this absences due to these closures.  Thereafter the leave would be unpaid but employers should consider permitting these employees to use any other paid time off benefits.

If any of the foregoing actions are taken by the employer, it is imperative that there be written communications with the affected employees to memorialize your expectation and the terms and conditions of any absence from workplace (e.g., no answering emails or engaging in any work activities for those employees not authorized to work remotely).    Transparency in the process will also go far in alleviating employee anxieties during this difficult and fluid situation.

As always Lindabury’s Labor & Employment team is available to answer any questions you have.  You can contact us here.

Published on:
Updated:

Comments are closed.

Contact Information