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FFCRA Opt-In Expanded Under American Rescue Plan Act of 2021

With the passage of The American Rescue Plan Act of 2021 (ARP), employers with fewer than 500 employees now have the option of continuing pandemic-related paid leave for eligible employees and seeking reimbursement for the paid leave expenses through payroll tax credits. 

As a reminder, the Families First Coronavirus Response Act (FFCRA), passed in 2020, required employers with fewer than 500 employees to provide certain paid leave benefits in response to the pandemic. FFRCA provided paid leave to eligible employees who could not work due to, among other things, (i) COVID symptoms, quarantine due to COVID exposure or a positive test result, and diagnosis; (ii) caring for a qualifying family member who contracted COVID or needed COVID-related care; and (iii) parents of children whose place of care was closed due to COVID precautions.  It also authorized corresponding payroll tax credits employers could use to offset the costs of the paid leave. For more on the FFCRA, including the duration of leave, caps on pay, and the mechanics of applying for payroll tax credits please click here to be taken to our COVID-19 Resource Page for more information, including alerts and recorded webinars on the subject.

The mandate for FFCRA leave expired on December 31, 2020, but Congress, through the 2021 Consolidated Appropriations Act, extended those payroll tax credits for covered employers who voluntarily extended FFCRA benefits to eligible employees through March 31, 2021. Now, the ARP has further extended these payroll tax credits for covered employers who voluntarily offer FFCRA leave to eligible employees and it also expanded the scope of coverage under the FFCRA. The payroll tax credits are now available for employer-paid qualifying FFCRA leave through September 30, 2021. In addition, key provisions of ARP expand the payroll tax credits for employers with fewer than 500 employees who provide FFCRA paid leave to also include:

  • Employees getting vaccines;
  • Employees recovering from any injury, disability, illness, or condition related to such immunization;
  • Employees seeking or awaiting the results of a COVID-19 test when the employee has been exposed to COVID-19 or the employer requested the test;
  • Employees who previously exhausted FFCRA leave and have another qualifying reason for leave (these employees are eligible for up to an additional ten day of leave beginning April 1, 2021); and
  • Employees using emergency family leave for any reason set forth the FFCRA (not just because a child’s school or place of care was closed).

Employers should note, the ARP also increases the amount of emergency family leave pay for which an employer may claim a tax credit from $10,000 to $12,000 per employee. While paid leave remains optional, employers who opt to offer it should apply it consistently throughout the organization. To ensure it is applied fairly, the ARP also introduced new non-discrimination requirements. These new non-discrimination rules bar employers from receiving tax credit if they offer leave in a way that favors highly compensated employees, full-time employees, or employees with greater tenure. 

Employers who are considering opting in to offering FFCRA leave should consult with counsel to understand employee eligibility, caps on the duration and pay rates, and the mechanics of claiming the payroll tax credit. Optional paid leave that does not meet the requirements of FFCRA leave will not be eligible for the ARP’s expanded tax credit.  Additionally, to be eligible for a payroll tax credit, the paid leave must be in addition to leave already available to employees under employer benefit plans, e.g., vacation, sick time, or other paid time off. 

For more information on how the FFCRA applies to your organization, or for any other questions related to the FFCRA and ARP, please contact Adam E. Gersh, shareholder in Flaster Greenberg’s Labor & Employment Practice, or Stephen M. Greenberg, shareholder in Flaster Greenberg’s Tax Practice, for more information. Alternatively, you may contact any member of Flaster Greenberg’s Employment or Tax Practices. 

THE YEAR THAT (SORT OF) WASN’T: Five Lessons Employers Learned During the COVID-19 Pandemic and What They Mean for the Future

As a labor and employment lawyer, over the past year, I had both a front row view of the ways the COVID-19 pandemic shaped workplaces in a broad array of industries and the privilege of working with employers to tackle truly unprecedented issues.  With the milestone anniversary of the pandemic at hand, it is time to reflect on some of the lessons we can learn from this transformational experience.

Lesson 1: The Value of the Mission-Driven Employee

A common thread that ran through many of the often unique challenges businesses faced this past year is that the value individual employees contribute to an organization is both inestimable and not necessarily tied to salary grade.  Some of the lowest paid employees risked their wellbeing to remain on the frontlines, and their dedication and hard work opened employers’ eyes to the value these employees provide.  We have seen that dedicated employees can often find creative ways to solve problems.  We have also seen other employees struggle in this new environment for innumerable reasons, including more limited supervision, fewer support resources when working from home, limited adaptability and flexibility of the employee, and the challenges of balancing work and parenting responsibilities (which are more pronounced when children are attending school from home).

The one thing that has been universal is that mission-driven employees find a way to succeed, while employees who view work as a job often come up short.  From entry level to the c-suite, this dichotomy in attitude reinforces that employees who buy into the mission of the organization find ways to accomplish that mission.  Going forward, employers can learn from this equation and use it in all phases of employee relations, including recruitment, promotion, employee benefits and incentives, and workforce management to identify and develop employees who are mission-driven.  At the same time, employers can foster dedication and loyalty by treating employees fairly, showing them appreciation and respect, and fostering unity behind the organization’s mission. 

An interrelated factor is the importance of mental health.  We saw once valuable employees so overwhelmed by fear and anxiety that they became unable to focus on their jobs. This sobering experience gives employers a new perspective on and appreciation for the importance of paying attention to their employees’ mental health as much as their physical health. Employers who formerly recognized the need to provide their employees with health insurance benefits but who disclaimed responsibility for tending to their employees’ mental health have awakened to the truth that mental health issues can be one of the most serious drains on employee productivity and company morale.

Lesson 2: The Office is not the Only Place Employees can Work

While the steady rise of technological advances already made it possible for employees to work from home efficiently, many employers have been resistant to allowing work remote, fearing loss in productivity and dilution of corporate cohesion and culture.  When the pandemic forced many office workers to work from home on a prolonged basis, employers learned their fears were, in many instances, overstated.  Dedicated and loyal employees (see Lesson 1) have worked as efficiently, if not more efficiently, outside of the office, finding new and creative ways to get the job done. 

An important takeaway from the new prevalence of remote work is that, even within the same position, employers have witnessed varying degrees of success from employee to employee working remotely.  Although some employees cannot concentrate at home, others can focus much better without the distraction of co-workers and the fatigue of commuting.  Employers should take note of this fact and look for ways to allow employees to work in the environment where they are most productive and successful.  Employers who are overly rigid about where workers perform their jobs risk impairing productivity, morale, dedication, and, ultimately, retention and recruitment.

Lesson 3: Reports of the Death of the Office are Premature

Although employees are working productively outside of the office, on-site work still holds an important place in successful businesses.  From training new employees to setting a corporate culture, working in an office creates important synergies within an organization.  When employees are together, their ideas cross-pollinate, producing better ideas. Employees can work better as a team, and motivate and inspire one another when they interact with each other face-to-face in an office setting.  Remote work has taken a toll on these beneficial activities that we have not replaced despite all the technology at our fingertips. Although a Zoom call can be a valuable tool and is often a necessity in today’s forced remote work arrangements, it is sometimes a poor substitute for a face-to-face meeting and is seldom as effective in building teamwork and creating and enhancing a business’s culture as a live social event.

Successful businesses will look for a balance between isolated workplaces where some employees thrive and the cohesion that comes from working in an office.  Organizations suffer without collaboration and, when their employees work only in silos, they seldom develop the unity of mission that leads to success.  In addition, employees often find job satisfaction and inspiration in their interactions with their colleagues. It is usually easier to walk next door to ask your colleague a question or chat with her about an issue than to make a phone call or exchange emails or text messages. What’s more, the results of the face-to-face meeting are usually more productive, not to mention, more satisfying than the remote conversation. Each organization will have to strike the right balance of office and remote work, but we have learned that technology alone is not a substitute for in-person interactions.

Lesson 4: Travel is Less Essential than we Thought

Although there is no substitute for meeting in person with a customer, there is also no doubt that corporate travel is a significant expense and disrupter of productivity.  Corporate travel can be invaluable in promoting in-person interactions that help build key relationships both within and outside the organization, but all too often in the past it was done without even thinking about whether there was a cheaper, less time-consuming, but just as effective alternative.  The era of corporate travel is far from dead, but the pandemic taught us that it is not as vital as we once thought.  We can use technology to train, gather information, work collaboratively, and develop relationships.  Again, technology is not a substitute for in-person interactions, but we now know there are viable alternatives to planes, trains, and automobiles that may help increase employee efficiency and boost employee morale. 

Additionally, for certain positions, finding talented employees who are willing to travel extensively can be a real challenge.  Employers who can find ways to minimize the personal sacrifices employees make to travel will find themselves rewarded with loyal employees who are satisfied with their jobs.   

Lesson 5: Adapt or Die

Perhaps one of the most important lessons from the pandemic is that employers must be prepared to adapt.  Those who are unable or unwilling to do so will suffer the adverse consequences. Employees who have found a new work-life balance working remotely will not want to give it up, just as clients who have grown comfortable with video meetings will not want to pay for travel that does not provide sufficient value.  We are in a transitional period and employees are becoming more assertive and clear-headed about what they do and do not want out of their employment.  That trend started when the millennial generation entered the workforce, but it has become more pronounced across all generations due to the pandemic.

Employers looking to recruit and retain top talent will need to meet the expectations of these employees or risk losing them to competitors who offer more flexibility.

Questions? Let me know.

WHAT ARE YOU SMOKING? New Jersey’s New Cannabis Law Also Changes the Rules for Employers

As New Jersey enters a new era of legalized cannabis, employers face a whole new crop of questions about responding to employee cannabis use.  The newly passed New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA”) changes the landscape for employers both in concrete ways and in ways that are still evolving.  On its face, NJCREAMMA allows employers to discipline employees for use of cannabis during work but prohibits them from taking adverse action against employee use outside of work. Although that principal seems straightforward, it is not. For an employer, determining when an employee consumed cannabis or whether they are actually impaired is quite challenging. The NJCREAMMA recognizes a positive cannabis test does not necessarily mean an employee is impaired at work and, therefore, limits employers’ ability to rely on tests alone. Until the science catches up to the law, employers do not yet have access to a reliable, objective measure to test for impairment at work, which makes it impossible to conclude an employee is impaired due to cannabis use based on testing alone.

What’s new?

As you may know, before the passage of this new 2021 law, the New Jersey Courts already ruled employers could not discriminate against employees lawfully enrolled in the State’s medical cannabis program and had to make reasonable accommodations for them. In practice, this body of case law, with limited exception, meant employers should not fire or refuse to hire someone who tested positive for cannabis if they had a medical use card.  Employers remained free to take adverse employment action against employees who showed signs of impairment and employees who tested positive but were not enrolled in the State’s medical cannabis program.

With the passage of NJCREAMMA, the scope of employee protections have materially expanded. Now, with limited exception, New Jersey employers may not take any adverse employment action (including refusing to hire a candidate) solely because the employee tests positive for cannabis. Employers can and should still prohibit impairment in the workplace. However, even when an employee is suspected of impairment, employers cannot act based on a positive test alone. Instead, NJCREAMMA requires that the employer also conduct a physical evaluation to determine whether an employee is impaired before it takes action based on a positive test. This physical evaluation must be performed by someone certified as a Workplace Impairment Recognition Expert. Although the State-created Cannabis Regulatory Commission is tasked with implementing guidelines for Workplace Impairment Recognition Expert training, it has not yet developed this training or guidelines. Until it does, this part of NJCREAMMA is not considered “operative” even though the law is deemed effective immediately. 

Aspects of NJCREAMMA’s employee protections, which do not have specific exemptions for safety related positions and require Workplace Impairment Recognition Expert training, are controversial and certain business groups are pushing for employee protections to be scaled back in the “clean up” bills that are expected to be introduced to try to refine NJCREAMMA. Due in part to the well-publicized political wrangling that preceded the Legislature’s final adoption of NJCREAMMA, employers should expect to see efforts to clarify the law as it applies to employers and to authorize common-sense controls on impairment in the workplace.

Employers are still permitted to conduct suspicion-based, pre-employment, random, and/or post-accident drug testing, but a positive test for cannabis alone is not enough to take action. Now, employers also must have evidence of impairment during work hours to take action. 

NJCREAMMA does allow employers to implement more strict rules for drug use when it is necessary to maintain a federal contract. 

NJCREAMMA does not restrict an employer from maintaining and enforcing drug-free workplace policies, but, again, when it comes to cannabis, employers must show use and/or impairment at work, as opposed to off-duty use. 

Savvy Employers’ Takeaways:

Practically, when it comes to cannabis, employers can focus on performance issues without attributing the source of the performance issue to cannabis impairment. Behaviors that might suggest drug use, such as sleeping on the job, carelessness, and lack of attention are properly the subject of discipline whether or not the employee is impaired by cannabis use or for another reason. NJCREAMMA, in its current form, makes it harder for employers to rely on testing as evidence of impairment, but does not restrict an employer from taking action based on observable impairment or performance issues. Although it may seem like new territory, employers have historically managed employee productivity issues, whether they arise from unknown causes or from use of legal substances, such as hangovers from alcohol abuse and performance deficits from use of prescription medications. Employers do not need drug tests to manage these issues but, instead, focus on the business disruption and observable performance issues. For now, employers would be wise to do the same when it comes to cannabis. 

Questions? Let me know.

Can I Fire an Employee Who Stormed the Capitol?

As all eyes were focused on the U.S. Capitol Building and insurgency on January 6th, back home, employers now face questions about whether they can discipline employees who participated in the siege or other off-duty conduct that contravenes the employer’s world view. The answers to these complex questions depend both on state law, the terms of employment, whether the conduct was lawful, and whether the conduct is otherwise protected. 

Broadly, non-government employees who are employed on an “at-will basis” can be terminated for any reason or for no reason, unless they are otherwise protected by law.  For example, as most employers know, employees cannot be terminated or disciplined if the employment action is discrimination against someone in a protected class and/or retaliation for engaging in protected conduct. By implication, this means “at will” employees can be disciplined or terminated for engaging in lawful off-duty conduct unless that conduct is otherwise protected. For instance, New Jersey law protects certain employees who use tobacco and cannabis off duty, but it does not protect employees who engage in the type of insurgency we saw on January 6, 2021, even if the employee acted lawfully. This means that a New Jersey employer can terminate or take action against an employee for participating in the siege on the Capitol, but cannot terminate an employee who smokes marijuana when they are not at work (provided the employee is not under the influence or otherwise impaired while on duty and the use does not impair an employer’s federal contract). Colorado, on the other hand, has a broader off-duty conduct statute that protects a range of lawful off-duty activity, meaning it is unlikely that employers in Colorado can terminate an employee who participated in the siege on the Capitol in a lawful manner. These are just two very broad examples but employers need to keep in mind that many states have a variety of off-duty conduct protections.

Employees who are employed pursuant to employment contracts, union bargaining agreements, and governmental entities may have specific rules that impose a higher standard for discipline or termination. For example, many union contracts restrict employers from disciplining employees for anything other than just cause arising from the employee’s conduct at work. n a unionized workplace it is likely an employer could not terminate or reprimand an employee who participated in the siege on the Capitol and in a lawful manner.

Employers should also keep in mind that the National Labor Relations Act protects employees who engage in protected concerted activities, whether in person or online, and employees who express support for (or opposition to) unions. These protections, among other things, offer protections to employees who desire to form or support a union. 

Savvy Employer Takeaways

In most instances, private employers can take actions against employees who engage in lawful off-duty conduct that the employer finds offensive, unless that conduct is otherwise protected by law or doing so would violate a the employee’s employment contract. Nonetheless, each situation requires an individual analysis of applicable law, the terms of employment, whether the conduct was lawful, and whether the conduct is otherwise protected. Employers must also weigh how such an action, or failure to take action, will influence the culture and productivity of their organization. 

Questions? Contact Adam E. Gersh

Employers’ COVID Update: To Mandate Or Not To Mandate?

Employers' COVID Update: To Mandate Or Not To Mandate?

Employers are growing accustomed to facing unprecedented decisions in every phase of this pandemic. As with many of the other situations employers have confronted over the past several months, whether to require employees to get the COVID vaccine as a condition of working on site presents novel issues that differ from mandates for the flu or other approved vaccines. 

Before we get into the specifics of the COVID vaccine, it is important to note, generally, employers are permitted to mandate employees are up to date on vaccinations in the interest of maintaining health and safety in the workplace.  Employers who opt to mandate vaccinations must also make reasonable accommodations for employees who cannot be vaccinated due to certain health conditions or deeply held religious beliefs. Mandatory vaccine programs must follow carefully coordinated protocols to comply with anti-discrimination laws and mitigate risks to employers arising from potential bias and retaliation claims. These steps include developing a system that limits pre-screening requirements to avoid conducting a medical examination, evaluating the risks of an employee’s opt-out, and determining whether alternate work assignments are available. 

In addition to these general rules, the COVID vaccine adds another layer of complication because it is not currently FDA-approved. Unlike a mandatory flu vaccination program, a COVID vaccine mandate requires an employee to receive a vaccine that is only available to the public under an Emergency Use Authorization, a less stringent standard than full FDA approval. As a result, employers who impose vaccine mandates before FDA approval open themselves up to a range of potential liabilities. In particular, employers may put themselves at risk if they terminate employees or refuse to hire candidates who raise public health concerns about the vaccine or a mandatory vaccination program, when the FDA has not approved its use. 

Additionally, current polling suggests up to 35% of the U.S. population may be unwilling to be vaccinated for COVID under the current circumstances, and certain workers are not authorized to receive it (e.g., workers under the age of the applicable Emergency Use Authorization for a specific vaccine formulation).  Those operational impediments to implementation of a mandatory vaccination program might hinder recruitment and retention efforts, and, on top of the legal risks described above, pose additional challenges for employers who want to adopt a COVID vaccine mandate.

Savvy employer takeaway:  For now, employers should, at a minimum, conduct vaccine education programs, encourage vaccination of employees, and, where possible, facilitate vaccination.  Employers who are considering implementing a vaccine mandate should do so only after careful consideration and consultation with counsel and after adopting protocols for vaccination.

The attorneys at Flaster Greenberg are following developments related to the COVID-19 Pandemic and formed a response team and to work with businesses to keep them up-to-date on developments that impact their business. If you have any questions on the information contained in this alert, please feel free to reach out to Adam Gersh, or any member of Flaster Greenberg’s Labor & Employment Practice Group

Supreme Court Rules Discrimination Against LGBTQ Employees Is Discrimination On The Basis Of Sex

In a landmark decision in Bostock v. Clayton County, the Supreme Court of the United States ruled discrimination against LGBTQ employees violates Title VII of the Civil Rights Act of 1964. The 6-3 ruling is significant in that it did not rely on technical grounds, but rather on the legal analysis that disparate treatment of employees based on sexual orientation or gender identity is, by definition, discrimination based on sex. This decision upended what had been settled law until, at least, 2010, which generally held that Title VII’s protections do not extend to discrimination based on sexual orientation or gender identity.

Starting in 2011, the U.S. Equal Employment Opportunity Commission (EEOC), which is responsible for enforcing Title VII, interpreted Title VII to prohibit discrimination against LGBTQ employees, however, many courts did not agree. Eventually, the U.S. Department of Justice under the current administration took the opposite position of the EEOC, creating conflicting interpretations within the executive branch. Indeed, as the Court noted in Bostock, U.S. Congress has repeatedly tried to amend Title VII to expressly prohibit discrimination based on sexual orientation and gender identity to resolve the conflict between these varying interpretations. There is no doubt that this decision is historic and will have the most immediate impact on employers in states where LGBTQ employees are not already protected by state laws or where state laws only provided weak protections. Title VII applies to both the private and public employers with 15 or more employees and to the federal government, employment agencies, and labor organizations.

Although the Supreme Court limited its decision to Title VII, since the decision is rooted in an analysis of the meaning of protections from discrimination “based on sex,” we can expect it will form the basis for future courts to apply greater protections under other federal and state laws outside of Title VII that prohibit sex-based discrimination but were not previously interpreted to protect against discrimination based on sexual orientation or gender identity. The message to businesses is clear: Title VII does not condone discrimination based on sexual orientation or gender identity and that is also likely true of an array of other anti-discrimination laws.

Questions? Let me know.

What Employers Can Learn From Early COVID-19 Employee Lawsuits

Business solutions, success and strategy conceptJust as businesses are beginning to face the initial wave of COVID-19 impacts, lawyers are seeing the first wave of employee lawsuits.  It is premature to even call these the tip of the iceberg, but the lessons from these early cases can prove meaningful and help businesses mitigate risk.

Ordinarily, workplace injuries and illnesses are handled through each state’s workers’ compensation system, but most states have exceptions that allow employees to bring a direct lawsuit for pain and suffering damages if certain conditions are met.  The standards to bring such claims vary state-by-state, but, generally, an employee must show the employer engaged in something more than ordinary negligent conduct (often gross negligence), such as removing a safety guard from machinery.  Certain states allow employees to bring direct claims if the injury occurred under circumstances where an employer knew or should have known with substantial certainty that the injury would occur and those circumstances deviated from standard industry practice.  These claims, especially if there are other similarly injured employees, create significant risk for businesses and may not be covered by insurance.

As it relates to injuries from COVID-19, we are seeing employees claim that they contracted the virus in their workplace because their employers failed to take necessary, industry-standard precautions under circumstances in which injury was substantially certain.  It remains to be seen whether employees will be able to show their COVID-19 complications were workplace injuries and how courts will delineate what employer lapses extend beyond ordinary negligence, but there are important lessons from these early cases that may help businesses limit risk.

In one recent example, the estate of a former Walmart employee brought an action against the retailer in Illinois state court after the employee died from COVID-19 complications.  In the suit, the estate alleges Walmart knew or should have known COVID-19 was present and active in the store, but failed to protect its workers in accordance with industry standards.  According to the employee’s estate, management knew several workers and individuals had symptoms of COVID-19, however, it did not (i) cleanse and sterilize the store in order to prevent COVID-19 infection; (ii) implement, promote and enforce social distancing guidelines promulgated by governmental entities; (iii) provide the employee and other workers with personal protective equipment such as masks, latex gloves, and other devices designed to prevent COVID-19 infection; (iv) warn the employee and other workers that various individuals were experiencing symptoms at the store and may have been infected by the coronavirus; (v) address other workers at the store who communicated to management that they were experiencing COVID-19 signs and symptoms; (vi) follow COVID-19 guidelines issued by OSHA and the CDC, including providing employees with antibacterial soaps and wipes and other cleaning agents; and (vii) implement policies and procedures to promptly identify and isolate sick people as also recommended by the CDC.

Of course, at this stage these are only allegations and we do not have the benefit of Walmart’s response, but the allegations are instructive as they are guideposts to the kind of conduct that may give rise to liability. Paying attention to them will allow employers to implement policies and procedures that will protect employees and mitigate the risk of claims that the employer’s conduct is sufficient to support a claim that seeks recovery beyond that available under through the workers’ compensation system.

Savvy employer’s takeaway: While it presents a unique challenge for employers to meet new and changing guidelines for maintaining operations, it is vital that employers stay abreast of all current federal, state, and local guidance, including guidance from the CDC and OSHA, and maintain and enforce policies consistent with that guidance. 

The attorneys at Flaster Greenberg are following developments related to the COVID-19 Pandemic and formed a response team and to work with businesses to keep them up-to-date on developments that impact their business.  For more information on what employers can do to comply with the changing law and manage risk, we invite you to contact Adam Gersh, or any member of Flaster Greenberg’s Labor and Employment Practice Group.

An Employer’s Guide to the COVID-19 Coronavirus Outbreak & FAQs

Coronavirus Virus Outbreak

This is an unprecedented time and employers face an evolving crisis and fast-moving changes to laws.  The team at Flaster Greenberg is prepared to help guide employers on compliance with existing and new laws, as well as best practices.  This is a summary of the most important things employers should keep in mind when it comes to adjusting policies to address this crisis.

On March 14, 2020, the U.S. House of Representatives passed the Families First Coronavirus Response Act, which, among other things, expands paid leave and Family Medical Leave Act (FMLA) benefits.  It also offers tax credits to help offset the burdens imposed by the expanded leave.  While this is not yet law, employers should account for its implications in formulating their workplace response.

Emergency Paid Leave and FMLA Expansion

The Act has provisions relating to nutrition, public health, insurance, and more, but the most relevant proposed changes for the workplace require employers with fewer than 500 employees to offer paid leave and expands FMLA rights for employees of those businesses.  Perhaps the most significant of the changes reflected in the Act is that they require covered employers to provide additional paid leave for parents if their child’s school is closed due to the coronavirus.

In summary, for employers with fewer than 500 employees, the paid leave provisions of the Act:

  • Require covered employers to provide each full-time employee with paid sick leave to:
    • Isolate because the employee has been diagnosed with coronavirus;
    • Obtain a diagnosis or care if the employee is suffering from symptoms of coronavirus;
    • Comply with recommendations of a public official or healthcare provider on the basis that employee’s presence at work will jeopardize the health of others due to exposure to coronavirus or exhibition of symptoms of coronavirus;
    • Care for a family member who is isolating because of a diagnosis, seeking care or diagnosis for symptoms, and/or must isolate to comply with recommendations of a public official or healthcare provider on the basis that family member’s presence in the community will jeopardize the health of others due to exposure to coronavirus or exhibition of symptoms of coronavirus;
    • Care for a child if his/her school has been closed or childcare is unavailable due to coronavirus;
  • Offer up to an additional 80 hours of paid sick leave for fulltime employees and two-weeks’ for part-time employees based on hours normally worked;
  • Prohibit an employer from applying sick leave or other paid time off otherwise available to meet this requirement;
  • Protect employees from being required to find a replacement co-worker to cover time the employee will miss;
  • Protect employees from discrimination and retaliation; and
  • Allow an employer to pay two-thirds of an employee’s compensation rate if the basis for the leave is to care for a child or family member (but not the illness of the employee).

In concert with the paid leave provisions of the Act, the FMLA expansion:

  • Applies the leave requirement to all employers with fewer than 500 employees, not just those with 50 or more employees, which has been the threshold for FMLA;
  • Exempts smaller employers with fewer than 50 employees only if complying “jeopardizes the viability of the business as a going concern”;
  • Allows coronavirus leave to be deemed FMLA, job-protected leave if taken at any time though December 31, 2020;
  • Makes emergency FMLA leave available to employees who have been employed for at least 30 calendar days, as opposed to the 12 months ordinarily required for FMLA leave;
  • Expands the definition of “parent” to include stepparents and others who act in loco parentis;
  • Expands the reasons employees may take FMLA leave to include:
    • To comply with a recommendation or order by a public official or healthcare provider on the basis that (i) the physical presence of the employee on the job would jeopardize the health of others because of the exposure of the employee to coronavirus or because the employee exhibits symptoms of the coronavirus; or (ii) the employee is unable to both perform the functions of the position of such employee and comply with such recommendation or order;
    • To care for a family member if a public official or healthcare provider recommended that the presence of the family member in the community would jeopardize the health of other individuals in the community; and
    • To care for a child under 18 years of age because the child’s school is closed;
  • Prohibits an employer from requiring an employee to use paid leave as part of FMLA leave, though the employee may opt to do so;
  • Requires an employer to provide paid leave after the first 14 days (which may be covered by the emergency leave law above), provided, however, such leave may be paid at no less than two-thirds of the employee’s pay; and
  • Provides certain exemptions for the requirement to restore an employee to his/her former position for employers with 25 or fewer employees.

Available Tax Credits for Employers and Self-Employed Individuals

To help offset the burdens of compliance, the bill offers certain payroll tax credits to those employers who must pay wages to employees pursuant to the expanded paid leave and FMLA benefits under the Act.  However, these tax credits under the Act will not be available to employers already receiving a credit for paying FMLA amounts pursuant to the Tax Cuts and Jobs Act of 2017 (Public Law 115-97).

In general, employee wages are subject to a total 12.4% Social Security payroll tax, which is paid equally by employers and employees.  Under the Act, employers will receive certain refundable tax credits through December 31, 2020 to offset the portion of the Social Security tax that they are required to pay. The refundable tax credits will be provided for Social Security taxes otherwise imposed on:

  • Qualified sick leave wages of up to $511 per day paid to employees who are on sick leave to care for themselves, or if the employee is on qualified sick leave to care for a family member or child if  the child’s school is closed, then the employer will receive tax credit for Social Security tax imposed on qualified sick leave wages of up to $200 per day. Qualified sick leave pay under the Act is limited to the excess of 10 days over the aggregate number of days taken into account for all preceding calendar quarters.
  • Qualified FMLA wages of up to $200 per day (capped at a total of $10,000 for the same employee for all calendar quarters) paid to employees who are on qualified FMLA leave.

Refundable tax credits will also similarly be available to self-employed individuals who receive “qualified sick leave equivalent pay” or “qualified FMLA equivalent pay”.  Specifically, the self-employed pay tax credits will be provided for income tax assessed on:

  • 100% of an eligible self-employed individual’s pay that constitutes “qualified sick-leave equivalent pay”, or 67% of the same if the individual is taking care of a family member or a child following the child’s school closing.  For these purposes “qualified sick-leave equivalent pay” is pay that equals the lesser of the individual’s average daily self-employment income, or $511 per day if the sick leave is for the care of the self-employed individual.  The $511 limit is reduced to $200 per day if “qualified sick-leave equivalent pay” is being paid to care for a sick family member or child following a school closing.  It would be available for 10 days over the number of days taken into account in preceding years.
  • 100% of an eligible self-employed individual’s pay that constitutes “qualified FMLA equivalent pay”.  An “eligible” self-employed individual for these purposes is an individual that would be entitled to receive paid leave under the Act if he was an employee of an employer.  “Qualified FMLA equivalent pay” may only be paid for up to as many as 50 days, and may equal the lesser of $200 per day or the individual’s average daily self-employment income for the taxable year.

Technical corrections and future guidance are expected to clarify and how long these tax credits may be available to small employers and self-employed individuals.

These refundable tax credits will reduce taxes owed by employers and self-employed individuals dollar-for-dollar .  Additionally, as a “refundable” tax credit, an employer or self-employed individual will receive the full-amount of the tax credit even if the credit exceeds the employer’s entire tax bill. Therefore, employers and individuals will continue to withhold applicable taxes in the same manner as taxes are withheld for wages for qualified sick leave and qualified FMLA leave, but expect to benefit from the tax credits when they complete applicable quarterly and/or annual tax returns.

While the Act is important because it imposes new and unfamiliar obligations on employers, existing laws also provide rights and are significant to navigating the impact of this pandemic on the workplace.  To better understand how all of these laws fit together, we compiled the following answers to frequently asked questions.  Employers should understand that this situation and the law are changing in ways we cannot necessarily anticipate.  Employers should consult with counsel to review and discuss how they respond to these issues.

Q&A

Q:    I have an employee who has tested positive for coronavirus or is exhibiting potential symptoms, what do I do?

A:    Send that employee home.  You have the right to send such an employee home even involuntarily.  Under the Act, if passed, such employees would be entitled to an additional two weeks of paid leave (in addition to any other vacation, sick time, or other paid time off otherwise available) and FMLA job-protected leave.

Q:    I have an employee who has been in close contact with an exposed individual or is otherwise in a high risk situation, may I prevent the employee from working or coming to the office?

A:    Yes.  If the employee is not working remotely, he or she  will be eligible for paid leave.

Q:    May I require employees to work remotely?

A:    Yes.  Employees may be required to work remotely, however, they should be provided with necessary tools to work remotely if they do not otherwise have them and if the tools are required for work; e.g., computers, printers, etc.  Employers should keep in mind, if they require a non-exempt employee (i.e., an employee who is entitled to overtime pay) to work from home, they may not require the non-exempt employee to pay for business expenses, where doing so reduces the non-exempt employee’s earnings below the required minimum wage or overtime compensation.  This provision would only apply to the additional cost of working from home.

Q:    May I require an employee use paid time off if he or she is quarantined?

A:    Ordinarily, an employer could impose such a requirement, however, under the Act, an employee must be permitted to use mandated leave first if applicable.

Q:    May I prohibit employees from using accrued paid time off if they are quarantined?

A:    If your employees work in New Jersey, the New Jersey Earned Sick Leave law permits use of statutorily-required sick leave (up to 40 hours) for public health emergencies if their workplace or child’s school or day care is closed or a public health authority determines the need for a quarantine.  Employees can also use this time to care for themselves or a family member who is ill.

Q:    Are advancing vacation time and exempting coronavirus-related absences an option to ease the burden on my workforce?

A:    Yes.  Employers can be more flexible with leave, however, employers should consider putting appropriate safeguards into place, such as requiring employees to repay advanced leave payments if they voluntarily leave employment within a set period of time.

Q:    If we close temporarily, do we have to pay employees?

A:    It depends.  You are required to pay non-exempt/hourly employees only for hours worked. This means, if you close your business temporarily due to coronavirus issues, you are not required to pay non-exempt/hourly employees, provided, however, you do give them required paid leave. However, employers also must account for applicable state wage and hour laws.  Salaried, exempt employees, must be paid for any work week in which they perform service.

Q:    If my employees cannot work a full schedule due to office closings, do I still have to pay them?

A:    For exempt, salaried employees, if they work at all during a week, they must be paid their pro-rated salary for that week.  For hourly employees, you need only pay them for hours worked.  Of course, all leave benefits, including those available under the Act, if it passes, apply, so paid leave may be available even if an office is closed.  In addition, an employer’s policies, procedures, or collective bargaining agreements may impose additional obligations.

Q:    My employees are scared to come to work, can I discipline them?

A:    It depends.  Employees who have disabilities should be given reasonable accommodations.  This means employees whose anxiety or other conditions are triggered by the coronavirus pandemic are due reasonable accommodations.  Additionally, the National Labor Relations Act protects nonsupervisory employees, whether they are unionized or not, who refuse to work in conditions they reasonably and objectively believe to be unsafe.  Likewise, OSHA protects employees who refuse to work in conditions they deem to be an imminent danger.

Q:    Is an employer liable if it requires employees to come to work?

A:    It could be.  As noted above, the National Labor Relations Act protects nonsupervisory employees, whether they are unionized or not, who refuse to work in conditions they reasonably and objectively believe to be unsafe.  OSHA also protects employees, both supervisory and non-supervisory, who refuse to work in conditions they deem to be an imminent danger.

Q:    Should we close our offices?

A:    Employers, absent those under governmental order to do so, are not required to close their offices.  If it is feasible, employers should do everything they can to permit remote work and limit visitors to the office and avoid large scale meetings.  This is an evolving situation and employers should follow the advice of public health officials.

Q:    Someone in my office tested positive for coronavirus, can we tell the other employees?

A:    Employers should inform employees of their risk of exposure but, if possible, should not disclose the name or any protected health information of the individual(s) infected.

Questions? Let me know.

Supreme Court of NJ Affirms Employee May State A Claim for Reasonable Accommodation for Medical Cannabis Use

medical marijuana

You may recall, in 2019, this blog post reported New Jersey’s Appellate Division joined courts that found an employee may be able to state a disability discrimination claim against an employer who takes an adverse employment action due to the employee’s use of medical cannabis.  That case, Wild v. Carriage Funeral Holdings, Inc., was one in a spate of recent decisions as courts in New Jersey and other states that allow medical use of cannabis have grappled with reconciling laws protecting employees from disability discrimination, employers’ rights to maintain workplaces free of drug use, and federal statutes outlawing cannabis use for any reason. Early decisions in these cases came down in favor of employers, permitting employers to discipline, terminate, or refuse to hire employees who use medical cannabis, even without evidence of use or impairment in the workplace.

New Jersey’s Appellate Division’s Wild ruling changed course when it held an employee may state a disability discrimination claim for failure to accommodate against an employer who takes an adverse employment action due to the employee’s use of medical cannabis.  Now, on March 10, 2020, the Supreme Court of New Jersey affirmed the decision, ruling an employer can potentially be liable under New Jersey’s Law Against Discrimination (“LAD”) for failing to accommodate an employee’s use of medical cannabis outside of the workplace.

What Happened?  In 2015, the employee, a funeral director, was prescribed and used medical cannabis as authorized by New Jersey’s Compassionate Use Act. In 2016, the employee was in an auto accident while working. The employee advised hospital staff he was authorized to use medical cannabis. The treating doctor responded that “it was clear [the employee] was not under the influence of cannabis [and, thus, his cannabis use was not a cause of the accident], and therefore no blood tests were required.”

While the employee recuperated, the employer advised that a blood test was required before the employee could return to work. The employee went to a facility to take a urine and breathalyzer test; however, the results were not provided to the employer and were not part of the case record.

The employee eventually returned to work, but, his supervisor advised him that his employment was “being terminated because they found drugs in your system”, though no test results had been provided to the employer. In a subsequent letter, the company told the employee it had terminated him not because of his drug use, but because he failed to disclose his use of medication contrary to company policy. The employee brought an action alleging he had been a victim of disability discrimination.

What did the Courts decide?  The trial court dismissed the employee’s claims, finding that New Jersey’s Compassionate Use Act “does not contain employment-related protections for licensed users of medical cannabis.” The employee appealed.

On appeal, a three-judge panel of New Jersey’s Appellate Division reversed the dismissal. The Appellate Division cannabis found that the LAD might require such an accommodation. Although the Compassionate Use Act does not make illegal an employer’s adverse action against an employee for medical cannabis use, by the same token, the Appellate Division stated it does not immunize an employer’s conduct that might otherwise have been a violation of the LAD.  In affirming the decision, the Supreme Court held an employee may state a failure to accommodate claim under the LAD against an employer who takes an adverse action against the employee for use of cannabis outside of work when that use is otherwise compliant with the Compassionate Use Act.

What do employers need to know?  It is important to understand neither the Appellate Division nor the Supreme Court ruled this employee was a victim of disability discrimination. In fact, the Appellate Division expressly recognized that the case was at the earliest stages, and the employer had pled potentially valid defenses.  The Court ruled only that the case could not be dismissed on its face.

New Jersey employers need to be mindful that they no longer have a free pass to take adverse employment actions against employees and candidates solely because they use medical cannabis outside of the workplace.  It is important to note, the courts in New Jersey have not suggested an employer must accommodate impairment due to medical cannabis use, so employers should remain vigilant about addressing employee impairment issues.  The law as to when an accommodation is reasonable is still developing.  For instance, a requested accommodation that may make an employer ineligible to bid on certain projects or that conflicts with established safety laws and regulations will be subject to greater scrutiny than a requested accommodation that does not impose added burdens on the employer.

In other words, stay tuned, because we have certainly not heard the last word on this topic.

Questions? Let me know.

 

Going Gaga Over Gag Orders

Letterboard with acronym NDA for "non disclosure agreement"

In the era of #MeToo, the gag order (legally speaking, non-disclosures or confidentiality clauses) has come under attack as a tool that silences victims and is responsible for compounding the damage to victims by keeping them from telling their stories. This issue took center stage in a recent Democratic Primary debate when Michael Bloomberg was chastised about confidentiality orders his employees signed and pressured by the other candidates to release these employees.

The victim oppression concern is a valid one with an intuitive appeal.  Why should victims be silenced?  Isn’t it in our collective best interests to hear from them so we can help them heal and protect the rest of us from predators?  While these sentiments address serious societal concerns, they also oversimplify the role of confidentiality clauses by narrowly casting them only as tools used only to hide bad behavior.  Often, they are tools that facilitate settlement and efficient resolutions of disputes that offer benefits that are less obvious than the victim-silencing purpose dominating the public discourse.

Imagine for a moment that you are a CEO of a small sales organization and a direct report accuses you of gender discrimination in the way you assign sales leads after you were selected for the position over that colleague. Suppose that you have strong evidence the claim is baseless because the manner in which leads are assigned is fully supported by objective performance evidence. Consider that defending against this baseless claim (a) will cost upward of $250,000 your company cannot afford to spend without diverting resources from significant business needs, (b) will disrupt your business, and (c) may even be in the hands of an insurer who can pressure you to settle. On top of that, do not forget that even after you present compelling objective evidence, you still must overcome the emotional appeal of the alleged victim with the jury.  Now, imagine if you can resolve this case for $7,500.  Would you want to settle such a claim?  Of course not.  But does it make good business sense?  Perhaps.

Even if paying the claim might be a sound economic decision, there are other concerns to weigh.  What would happen if it came out that you resolved this case? Would it look like you did something wrong?  Would it hurt your reputation?  Would it hurt your business?  Would it jeopardize the stability of the workforce? Would it invite others to bring baseless claims for a payday?

One way to balance these concerns and make a good business decision is to resolve the case with an agreement that includes a non-disclosure clause.  It is not a perfect answer and, in certain states, it is not allowed (see this legal alert), at least, to the extent it requires a person to keep the underlying allegations confidential. Nevertheless, it is an important incentive to resolve a claim. The accuser is able to resolve a case, the accused is able to continue business operations, and would-be con artists are not as incentivized to bring copycat claims to chase a windfall.

Alternatively, imagine, after getting a coveted promotion, you learn your boss selected you because he/she expected you would show your appreciation with sexual favors. Soured on the work culture and feeling like you’ve been stigmatized, you assert a claim, settle, and resign.  You have a right to put this behind you and move on, but are concerned it will affect you in unanticipated ways.  How will potential employers react if they learn you claimed you were promoted based on your boss’s sexual interest in you and not your merit?  Will referral sources, clients, and other contacts view you negatively?  Do you want to leave open the possibility that the boss or others who are privy to the situation will trash your reputation?  Would you prefer a confidential settlement to protect yourself?

The ways in which confidentiality settlement allow parties to get beyond these types of concerns and to a settlement influences the entire system.  For example, consider whether settlement would be less likely if these concerns could not be mitigated.  Moreover, consider whether attorneys representing employees would be less willing to take a case if the only chance for recovery was to win a trial with all the associated risks and costs.

In these ways, confidentiality clauses are helpful and efficient. Moreover, the view that confidentiality clauses are aimed only at keeping victims from talking about their experiences is overstated.  Certainly, that happens and is a matter of public concern, but, often, confidentiality clauses serve other goals and facilitate settlement.  Indeed, many times the accuser has already told his/her version of events in a publicly-filed complaint or by testifying at a hearing, meaning confidentiality only practically applies to the amount of money paid to settle, not the underlying conduct.

Likewise, the idea that these agreements hide the conduct of serial abusers is also misplaced.  Generally, a confidential settlement would need to be disclosed in litigation alleging similar conduct by another victim.  Indeed, most confidentiality agreements are required to include an exception allowing information about a complaint to be produced if sought in a subsequent legal matter.

None of this is to say that confidentiality clauses are not overused and abused.  Concerns that they can be a tool of victim oppression are serious and warranted.  Victims have been silenced unfairly and unjustly.  These instances, however, do not mean that all confidentiality clauses should be viewed as markers of victim oppression. It is important to weigh the range of competing factors served by confidentiality agreements, so we can take a more balanced view without presuming they are only a means to silence victims and protect harassers and predators.

Questions? Let me know.

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