Mar 12, 2020
Coronavirus Guidelines for New Jersey Employers
In light of Governor Murphy’s declaration of a state of emergency related to the spread of the Coronavirus, a review of the parameters of New Jersey’s Earned Sick Leave Law is appropriate. All New Jersey employers must provide employees up to 40 hours of paid sick leave per year. Employees must accrue up to 40 hours of paid leave at a rate of one hour for every 30 hours worked. The law covers all full time and part time employees with very limited exemptions. Per diem health care employees are exempt and Unionized employees may waive their rights during the negotiation of a CBA.
Employees can use accrued sick time after the 120th day of their first date of employment for the following reasons:
- Diagnosis, care or treatment of—or recovery from—an employee's own mental or physical illness, including preventive medical care;
- Aid or care for a covered family member during diagnosis, care or treatment of—or recovery from— the family member's mental or physical illness, including preventive medical care;
- Circumstances related to an employee's or their family member's status as a victim of domestic or sexual violence (including the need to obtain related medical treatment, seek counseling, relocate or participate in related legal services);
- Closure of an employee's workplace or of a school/childcare of an employee's child because of a public official's order relating to a “public health emergency”;
- Time needed by the employee in connection with a child of the employee to attend a school-related conference, meeting, “function or other event”.
There are three requirements for earned sick leave to be used for “public health emergency” purposes. Initially, there must be the occurrence of one of five kinds of events, including the appearance of a novel or previously controlled or eradicated biological agent such as a virus like Coronavirus. Secondly, there must be the high probability of the existence or likely occurrence of a number of serious health impacts, such as deaths, injurie or illnesses. Lastly, there must be a closure ordered by a public official. That is, a public health emergency without an accompanying order of a public official directing closure of the place of work of the employee or the school or place of childcare will not constitute a legitimate reason to use earned sick leave. Accordingly, the Governor’s declaration of a state of emergency standing alone does not trigger an employee’s right use earned sick leave.
Notwithstanding, employers in the private sector will likely be faced with the dilemma of how to respond to the Coronavirus hysteria as more schools and public institutions close for extended periods of time. In determining how to prepare for and respond to the inevitable employee questions and concerns, employers should review and refer to the guidance issued by the Centers for Disease Control and Prevention (CDC). Employers should also consider the following guidelines.
Encourage Infected or At-Risk Employees to Stay Home:
Employers should encourage infected or at-risk employees to stay home from work to lessen the threat to the balance of the workforce. Under certain circumstances an employer may require an at-risk or infected employee to stay home from work; however, employers should consult with counsel about how and when to impose this requirement as the potential for liability for discrimination exists.
Employers may consider allowing employees who must stay home with the option to work remotely or telecommute to maintain productivity. However, while telecommuting may be an option in some cases, employers must consider whether allowing telecommuting for certain employees but not others may lead to claims of discrimination or preferential treatment and may set a precedent for future requests for telecommuting.
Payment obligations also depend on whether an affected employee is exempt or nonexempt. Nonexempt employees are only entitled to pay for the time that is actually worked, whether a full or a partial day. However, to encourage nonexempt employees to stay home if they are ill or at-risk, employers may want to consider allowing these employees to use their available PTO or vacation leave if they are sick or have been instructed to stay home and they have exhausted their earned sick leave. Employers may also want to consider allowing PTO or vacation loans, pools and advances to provide nonexempt employees with pay protection. These actions will not only help to encourage employees to stay home if they are ill or at-risk, but they will also demonstrate the employer’s commitment to the health and well-being of the workforce.
Exempt employees pose a different set of considerations for employers. Generally, exempt employees must be paid their full salary for any week in which the employee performs any work for the employer. An employer may not make deductions from an exempt employee's pay for absences caused by the employer or by the operating requirements of the business. If the exempt employee is ready, willing and able to work, an employer cannot make deductions from the exempt employee's pay when no work is available. Employers may deduct from an exempt employee's pay when an employee is absent from work for one or more full days for personal reasons other than sickness or disability. Employers may deduct for full-day absences due to sickness or disability in accordance with a bona fide plan of providing compensation for loss of salary caused by the impairment. Employers should consult with counsel for guidance in addressing exempt employees and to confirm whether their PTO plans qualify.
Employers must be proactive in managing business travel. Employers should monitor and consider the travel prohibitions set out by the CDC. Travel restrictions and prohibitions should be uniform and result in consistent treatment of employees. Employers should update and publish their travel policies in close connection with travel advisories from governmental authorities and should publish their policies. Regarding personal travel, employers are limited in their ability to restrict employees from personal travel and any effort to do so should be vetted by counsel beforehand. However, employers can and should advise employees of the risks they assume by traveling, especially to an affected area, including the risk of government ordered isolation and quarantine.
Medical exams & Requiring Disclosure of Symptoms:
Generally, employers should not require employees to undergo medical exams and should avoid making unnecessary inquiries into an employee’s medical status. The Americans with Disabilities Act (ADA), along with state law, restrict an employer’s ability to ask questions about an employee’s medical condition. Employers should consult with counsel to assess whether such inquiries are appropriate and permissible. Employers can request that employees disclose whether they have been diagnosed with the virus and are experiencing symptoms or have been within close proximity of someone who has the Coronavirus. Disclosure should be completely voluntary, and employers must keep all information relating to the employee’s or their family member’s medical condition confidential.
DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.