Labor & Employment Insights — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

New Jersey Legislators Poised to Pass Recreational Marijuana Bill That May Send the Safety-Sensitive Exception up in Smoke

Published on: December 10, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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:

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

CDC Recommends Universal Use of Face Masks and Shortens Travel Quarantine Recommendation

Published on: December 10, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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.

CDC Issues New Guidance on Quarantine of Individuals Exposed to Persons with COVID-19

Published on: December 4, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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.

Final “Transparency Rule” Issued for Group Health Plans and Insurers

Published on: November 30, 2020 | by James K. Estabrook and Elizabeth Engert Manzo

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.

New Jersey Mandates Workplace Health and Safety Standards During COVID-19 Pandemic

Published on: October 30, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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.

The Hiring Process: Best Practices and Common Pitfalls

Published on: October 29, 2020 | by Lisa Gingeleskie

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

Reopening the Workplace Under COVID-19

Published on: October 1, 2020 | 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.

Lindabury Attorneys Named 2021 Best Lawyers and Lawyer of the Year

Published on: August 20, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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:

Steven Backfisch: Litigation – Labor and Employment

Now What? Federal Court Nixes USDOL’S Regulations Implementing the Families First Coronavirus Response Act

Published on: August 14, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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.

Reopening the Household Following COVID-19

Published on: August 6, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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;