Labor & Employment Insights

On October 28th, Governor Phil Murphy signed Executive Order No. 192 providing mandatory standards in the workplace in an effort to protect employees during the pandemic.

Lisa Gingeleskie, a member of Lindabury’s Labor, Employment & Employee Benefits group provided commentary to NJBIZ on how employers of the Garden State must ensure compliance with the recently imposed COVID-19 workplace protocols. The writeup breaks down crucial details on the new standards and protocols to help employers achieve compliance.

Featured in the November 30, 2020 Edition of NJBIZ, the entire article can be found here.

On October 29, 2020, the Department of Health and Human Services (“HHS”), the Department of Labor (“DOL”), and Department of Treasury (“DOT”) collaborated to issue a final “transparency rule” aimed at providing greater information to consumers, thereby allowing them to explore different healthcare options and avoid surprise billing for services rendered.  Additionally, the rule requires the public disclosure of negotiated rates for in-network providers and amounts allowed for out-of-network providers.

Disclosure of Provider Rates

Under the rule, non-grandfathered health plans and insurers must publish their negotiated rates and allowable out-of-network charges on a public website, which is to be updated monthly through three machine-readable files.  The website must be publicly available, accessible without charge, and cannot require a user account, password, or other credentials, or submission of personally identifiable information to access the files.  Specifically, the files will reflect negotiated rates for in-network services, historical payments to and billed charges from out-of-network providers, and in-network negotiated rates.  The files must also show historical net prices for covered prescription drugs at the pharmacy level.

On October 28, 2020, Governor Murphy signed Executive Order No. 192[1] providing mandatory health and safety protocols aimed at protecting New Jersey employees during the COVID-19 pandemic.  The executive order, which takes effect immediately, mandates that as of 6:00 a.m. on Thursday, November 5, 2020, all employers shall be required to adhere to the protocols set forth below.  Any employer found to have violated the order may be subject to closure.

Social Distancing

Employees must maintain at least six feet of distance from one another wherever possible, including but not limited to during worksite meetings, orientations and similar activities that would traditionally require individuals to be present in a single room and in close proximity, in common areas such as restrooms and breakrooms, and when individuals are entering and exiting the workplace. Where the nature of an employee’s work or the work area does not allow for six feet of distance to be maintained, employers must require their employees to wear a mask and install physical barriers between workstations wherever possible.

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Employee Recruitment

Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.  Employers must be mindful of recruiting and hiring with Equal Employment Opportunity principles in mind and must implement practices that ensure recruitment and hiring decisions are not based on an employee’s protected status.  Applications should be screened consistently – the same standards should be applied to everyone applying for the same position.  Employers should also be mindful of the possible need to accommodate applicants who need assistance because of their medical condition or religious beliefs.  For example, you may need to help a person with carpal tunnel syndrome fill out an application, or you may need to reschedule an interview originally scheduled for a religious holiday if the applicant’s religious beliefs prevent her from working on that day.

 The Fair Credit Reporting Act and Background Checks

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Lindabury Labor & Employment attorneys John H. Schmidt, Jr., Kathleen M. Connelly, and Lisa Gingeleskie have co-authored a chapter for Chambers on New Jersey Employment Law. This write-up has been published and is now available online.

The chapter explores six areas of New Jersey Employment Law, such as:

  • the current socio-economic, political, and legal climate

We are proud to announce 11 of our attorneys have been named to the 2021 Best Lawyers® list, two of which were named “Lawyer of the Year.” This recognition in The Best Lawyers in America© 2021, identifies each for their leading legal talent in their corresponding practice areas.

The following Lindabury attorneys were named as Best Lawyers honorees:

On August 3, 2020, the US District Court, Southern District Court of New York, issued its opinion in State of New York v. U.S. Department of Labor, et al. striking down four material components of the US Department of Labor’s (“DOL”) regulations implementing the Families First Coronavirus Response Act (“FFCRA”).  The Court’s opinion comes approximately four months after the effective date of the regulations and five months before the FFCRA is scheduled to expire.

Background. The FFCRA incorporates the provisions of the Emergency Family and Medical Leave Expansion Act (“Expanded FMLA”) entitling employees up to 12 weeks of paid leave if they are unable to work because of the closure of a child’s school or place of daycare during the COVID-19 pandemic.

The Emergency Paid Sick Leave Act (“Emergency PSL”), also incorporated within the FFCRA, requires covered employers to provide employees up to 80 hours of paid sick leave if the employee is : (1)  subject to a government quarantine or isolation order related to COVID-19; (2) has been advised by a heath care provider to self-quarantine due to concerns related to  COVID-19; (3) experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) caring for an individual subject to a quarantine or isolation order by the government or healthcare provider; (5) caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19; or (6) experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

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The COVID-19 pandemic has interrupted households and working families everywhere.  As states begin to reopen, employers across the country are constructing return to the workplace plans that incorporate changes to physical and behavior protocols within their buildings and office space. As employees look to reenter the workplace, many working parents are faced with a similar issue – how to safely reopen the home to household employees, including nannies, tutors, dog walkers, cleaning staff, etc.

Whether you’re welcoming back a former employee, or hiring someone new, it is imperative that you construct a thoughtful return to work plan for those reentering your household.  While an open and honest conversation about these challenges is a good starting point, the best source of protection is a written agreement between the parties, which formalizes expectations and eliminates areas of question down the road.  Your “return to the household” plan or contract should take into account the following principles:

  • Disinfecting and cleaning measures;
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On June 19, 2020, the IRS released Notice 2020-50, which provides additional guidance and relief for retirement plan participants taking coronavirus-related distributions and loans under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”).  Under the CARES Act, “qualified individuals” may take coronavirus-related distributions of up to $100,000 from their eligible retirement plans without being subject to the 10% additional tax on early distributions.  In addition, a coronavirus-related distribution can be included in income ratably over the three-year period commencing with the year of distribution and the individual taking the distribution has three years to repay the distribution to the plan, or roll it over to an Individual Retirement Account (“IRA”) or other qualified retirement plan, with the effect of reversing the income tax consequences of the distribution.  In addition, the CARES Act allows plans to suspend loan repayments due from March 27, 2020 through December 31, 2020 and further allows for an increase in the dollar amount on loans made between March 27, 2020 and September 22, 2020 from $50,000 to $100,000.  Notice 2020-50 expands the definition of qualified individuals under the Act and provides additional, clarifying guidance regarding coronavirus-related distributions and loans.

Expansion of the Definition of “Qualified Individual”

Under the original language of the CARES Act, a qualified individual included the following persons:

Lindabury partner Kathleen M. Connelly of the firm’s Employment Law group discussed with ROI-NJ the question her clients have been asking most in regard to office reopenings, which is how to deal with employees who are reluctant to return to work due to a generalized fear of COVID contraction. While employees returning to the workplace continue to have significant leave protection for COVID and non-COVID absences through December of 2020, employees can still be terminated if they refuse to return to work, and there are certain ways employers can communicate and accommodate their staff, which is also outlined in the article.

You can read the entire transcript here.

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