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COVID-19 Response: What New Jersey Employers Need to Know About Coronavirus-Era Operations

Newark, N.J. (April 2, 2020) - In the short time since the pandemic arrived, and as we have been reporting, the federal government and the states have adopted a variety of new statutes, regulations, and guidance with which employers must become conversant. This alert focuses on key new developments for New Jersey employers.

New Benefits for Employees Unable to Work Due to COVID-19

On March 25, 2020, Governor Philip Murphy signed a new law that expands the Earned Sick and Safe Leave Law, Family Leave Act, and the Temporary Disability Benefits Law. Specifically, the law provides enhanced benefits for employees who cannot work due to circumstances caused by COVID-19 and during the current state of emergency.

The key amendments are as follows:

The New Jersey Earned Sick and Safe Leave Law (NJESSL)

Based on the pandemic crisis, the NJESSL now requires employers to allow employees to use their earned leave when they cannot work due to:

  • Closure of the workplace, or the school or place of care of their child, because of a state of emergency declared by the Governor;
     
  • The Governor’s declaration of a state of emergency or the issuance by a healthcare provider or the commissioner of health or other public health authority, that the employee’s presence in the community, or that of a member of the employee’s family in need of care by them, would jeopardize the health of others; or
     
  • During a Governor-declared state of emergency, or upon the recommendation, direction, or order of a healthcare provider or authorized public official, the employee undergoing isolation or quarantine, or being required to care for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding that the individual/family member’s presence in the community would jeopardize the health of others.

Because Governor Murphy declared a state of emergency in New Jersey on March 9, 2020 in Executive Order 103, employees may now use Earned Sick Leave under one of the above-listed expanded reasons for use if they are absent from work due to the state of emergency, because of a closure, or actual or suspected infection.

The New Jersey Family Leave Act (NJFLA)

This statute permits employees of covered employers to take up to 12 weeks of unpaid family leave in a 24-month period for the birth or adoption of a child or to care for a family member with a serious health condition. The NJFLA has been amended as follows:

  • “Serious health condition” is amended during a Governor-declared state of emergency or similar health crisis to include “an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of a family member of the employee due to: (1) the issuance by a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of a family member may jeopardize the health of others; and (2) the recommendation, direction, or order of the provider or authority that the family member be isolated or quarantined because of suspected exposure to the communicable disease.”
     
  • The amendments have eliminated the requirements for advance notice and certification for leaves taken based on the expanded “serious health conditions” related to a state of emergency or similar health crisis. Inasmuch as testing for COVID-19 may not be widely available, leave is available for employees with family members known or believed to have been exposed and who are self-quarantining.

Note that even before the new amendments, the time during which an employee is laid off or furloughed “because of a state of emergency” was included in calculating the employee’s eligibility for leave.

The New Jersey Temporary Disability Benefits Law (NJTDBL)

This statute, which provides wage replacement through the state or approved private plans funded through payroll deductions, has been permanently amended in the following respects:

  • “Serious health condition” is redefined to reflect the new definition utilized in the NJFLA as set forth above with respect to “the employee or family member of the employee;”
     
  • A “compensable disability” is now defined to encompass “leave to care for family members suffering from accident or sickness;”
     
  • “Sickness” is now defined” to mirror the expansion to the definition of “serious health condition” under the NJFLA; and
     
  • The seven-day waiting period for benefits eligibility is eliminated when an employee seeks benefits related to his or her own serious health condition, but only if the condition falls within the newly expanded definition.

New Jersey Department of Labor & Workforce Development FAQ

The New Jersey Department of Labor & Workforce Development (DOL) has issued guidance that explains the benefits that may be available under state law for specific situations, such as for employees who have COVID-19, who have family members who have the disease, or who must stay home to care for children whose school is closed.

Notably, the DOL points out that an employee who does not go to work because the employee’s healthcare provider says he or she is at greater risk due to a pre-existing health condition can use accrued Earned Sick Leave on the grounds that the employee is engaging in preventative self-care.

Restrictions on Businesses Operations Imposed by the Governor’s March 23 Order

New Jersey Gov. Philip Murphy has issued Executive Order No. 107 directing all New Jersey businesses to reduce their in-office workforce as much as possible.

The Executive Order requires all businesses or nonprofits in the state to use their best efforts to reduce staff on site to the minimal number necessary to continue essential operations. Specifically, employers must accommodate their workforce, wherever practicable, by providing for telework or work-from-home arrangements. Employees who may need to be physically present include certain administrative staff, information technology maintenance workers, janitorial, and custodial staff.

The greatest public impact of the order is the requirement that all nonessential retail businesses close to the public. Even essential retail stores are required to reduce their in-office workforce as much practicable.

The essential retail businesses that are permitted to continue operating include:

  • Grocery stores, farmer’s markets, and farms that sell directly to customers, and comparable other retail food stores;
     
  • Pharmacies and medical marijuana dispensaries;
     
  • Medical supply stores;
     
  • Gas stations;
     
  • Convenience stores;
     
  • Ancillary stores within healthcare facilities;
     
  • Hardware and home-improvement stores;
     
  • Banks and other financial institutions;
     
  • Laundromats and dry-cleaning services;
     
  • Stores that principally sell supplies for young children;
     
  • Pet stores;
     
  • Liquor stores;
     
  • Car dealerships, solely for auto maintenance and repairs;
     
  • Printing and office supply shops; and
     
  • Mail and delivery stores.

The Governor’s office has published an online form for individuals to report suspected employers in violation of the EO.

Discrimination Guidance from the State Attorney General and the Division on Civil Rights

Finally, on March 19, 2020, New Jersey Attorney General Gurbir S. Grewal issued a press release which is essentially a reminder to employers that the New Jersey Law Against Discrimination (LAD) provides a broad array of protections for employees that apply with full force to pandemic related issues.

For example, the LAD prohibits firing workers based on perceived coronavirus symptoms. Further, employers are required to take reasonable action to stop related harassment between employees. The attorney general points out that telling a co-worker with East Asian heritage that COVID-19 is the Chinese virus may be considered actionable national origin-based harassment. Employers may not terminate or otherwise retaliate against employees who are perceived to have a disability related to COVID-19 or who report COVID-19 related harassment or discrimination.

The Division on Civil Rights simultaneously issued FAQs. Additional points made by the FAQ include:

  • The NJFLA applies to caring for loved ones suffering from the coronavirus, and provides for up to 12 weeks of job-protected leave during any yearlong period to care for a family member or “someone who is the equivalent of family” who has been diagnosed with COVID-19.
     
  • Employees diagnosed with COVID-19 or whose children’s schools have been ordered closed may use accrued Earned Sick Leave.

Lewis Brisbois has formed a COVID-19 Attorney Response Team to help your business with the myriad legal issues arising from the outbreak. Visit our COVID-19 Response Resource Center for additional alerts on this topic.

Author:

Peter T. Shapiro, Partner

Editor:

Michael D. Thompson, Partner

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