Category: Labor & Employment

Families First Coronavirus Response Act: Paid Leave now Required for Absences Related to the Coronavirus (COVID-19)

Early Saturday, March 14, 2020 the House of Representatives passed the Families First Coronavirus Response Act (the “Act”). The Senate is set to take this matter up on Monday, March 16, 2020 and President Trump stated that he will immediately sign the legislation. The Act has many facets to it including new temporary employer obligations relative to paid leaves of absence related to the Coronavirus (COVID-19) and expands employer obligations under the Federal Family and Medical Leave Law. Employers have time to prepare as the law will be effective 15 days after enactment (potentially as soon as March 31, 2020, if signed Monday). While there is much remaining to be analyzed under this new law, the following provides an initial overview so employers can begin preparations for compliance and education of the workforce.

Expansion of FMLA rights

First, the Act expands the pool of employees that qualify for federal FMLA leave. The Act will require employers with fewer than 500 employees1 (and all government employers) to provide employees who have been employed for at least 30 days with FMLA leave for Coronavirus reasons if:

  1. The employee is absent from work due to the employee’s physical presence jeopardizing the health of others due to exposure to the Coronavirus or due to the employee exhibiting symptoms of the virus;
  2. The employee will care for a family member who a health care provider or a public health authority determines has been exposed to the Coronavirus or who exhibits symptoms of the virus; or
  3. The employee is needed to care for a son or daughter under 18 because a school or a place of care (daycare) has been closed or the child care provider is not available.

The definition of “family” in the application of the above requirements is expanded to include family members who are senior citizens, grandparents, grandchildren, next of kin of the employee or is a son or daughter with special needs. The definition of “spouse” also includes domestic partners, as defined under the law.

The rights and remedies available to an employee under the federal FMLA remain the same. Therefore, we recommend that employers review existing procedures and forms utilized to determine FMLA eligibility and update those materials to recognize the Act’s broadened scope.2

Enhanced Right to Paid Time Off

The Act also mandates that employers provide “Emergency Paid Sick Leave.” This benefit is available to employees to:

  1. Self-isolate because of a Coronavirus diagnosis;
  2. Obtain medical diagnosis or care if the employee is experiencing the symptoms of the Coronavirus;
  3. Comply with an order of a public official or Health Care Provider that physical presence at work would jeopardize the health of others due to the employee’s exposure to the Coronavirus or because the employee is exhibiting symptoms of the illness;
  4. Care for a family member of the employee due to the family member’s self-quarantining based upon exposure to the virus or because the family member is exhibiting symptoms and requires medical diagnosis or care; or
  5. Care for a child of the employee if a school or place of care has been closed or the care provider for the child is unavailable.

If an employee meets one or more of these qualifications, the Act provides that the employee is entitled to Emergency Paid Sick Leave. Specifically, full-time employees will have 80 hours of sick leave available to them and part-time employees will have their average hours of work over a 2-week period available as Paid Sick Leave. If the employee has variable hours of work each week, the employee’s average hours of work over the preceding 6 months will be used to determine the employee’s average hours per week. The sick leave benefit will be paid at the employee’s regular rate of pay for any absence due to the employee’s own treatment or quarantine. The sick leave benefit will be paid at two-thirds of the employee’s regular rate of pay for any absence to care for a family member or to provide child care due to school or daycare closure.

If an employee needs leave beyond the 2-weeks for Emergency Paid Sick Leave and continues to meet the requirements associated with the Act’s mandate for paid leave under the FMLA, the employee will be paid not less than two-thirds of the employee’s regular rate of pay (or minimum wage, if greater) for the regular hours of work missed, to the extent of the employee’s already-existing available FMLA leave. The changes to the FMLA under the Act will expire on December 31, 2020.

Finally, for employee absences associated with non-FMLA qualifying reasons (e.g., an employer’s decision to send an employee home because the employee is exhibiting flu-like symptoms), the employee may be eligible for Unemployment Insurance benefits beginning in the first week of absence. This provision will expire on December 31, 2020.

It is important to understand that the Act entitlement represents the “floor” of entitlement. In other words, employers will not enjoy a reduced obligation to provide Paid Sick Leave if it already offers Paid Sick Leave to employees. The Paid Sick Leave under the Act is in addition to what the employee may already be entitled to in employment. However, there will not be any carryover right for unused Sick Leave granted under the Act.

Again, it is important that employers revisit their protocol for determining eligibility for paid sick leave and prepare to implement the new mandate. Likewise, employers providing Paid Sick Leave and absence benefits should carefully log the wages paid related to compliance. As of now, the Act anticipates a tax credit available for sick leave wages paid to employees, subject to caps established under the law.

1 Exemptions for small employers (fewer than 50 employees) and certain emergency and healthcare workers continue to be discussed.
2 The DOL will be issuing a Notice related to the new requirements that must be posted along with other employment related Notices to employees.

©2020 von Briesen & Roper, s.c
For more on the developing Coronavirus situation, see the National Law Review dedicated Coronavirus News page.

COVID-19: Navigating the Issues Faced by Employers

The ongoing COVID-19 outbreak has brought about a whole range of novel legal considerations for employers in Singapore.

Stay-home orders

There are mainly two types of “stay-home orders” which are currently being implemented in Singapore. They are the:

  • Quarantine Order (“QO”); and
  • Stay-Home Notice (“SHN”).

A QO is a directive issued to quarantine or isolate an individual who is, or is suspected to be, a carrier or contact of an infectious disease.

A SHN is a new measure that took effect on 18 February 2020, effectively replacing the then prevailing leave of absence (“LOA”) measure, which was less stringent. The SHN would be issued to individuals returning to Singapore from certain designated regions within the last 14 days from their date of return.

Obligation to pay employee salaries

QOs are served on individuals by the Ministry of Health (“MOH”). The period of absence from work necessitated by the QOs should be treated as paid hospitalization leave, as part of the employer’s hospitalization leave eligibility under their employment contracts, collective agreements, or under the Employment Act. For employees who have used up their paid hospitalization leave, employers are urged (but not statutorily mandated) to exercise compassion and flexibility by granting additional paid hospitalization leave.

During the SHN period, if remote working is not possible, employers are encouraged to provide additional paid leave on top of the employees’ annual leave entitlements for the SHN, especially if the reason for the employee being on SHN is that he had to undertake work-related travel. If that is not feasible, employers can consider the following options, or a combination of the options, for the employees on SHN:

  • Treat employees’ SHN as paid hospitalisation leave or paid outpatient sick leave;
  • Allow employees to apply for annual leave;
  • Allow employees to use advanced paid leave or apply for no pay leave, for employees who have used up their leave entitlements; or
  • Other mutually agreed arrangements between the employers and employees/unions.

The Ministry of Manpower (“MOM”) is providing support to help businesses who are affected by the SHNs in the form of a SHN Support Programme. The MOH has similarly put in place a Quarantine Order Allowance Scheme. Both of these are in place to mitigate the financial impact for employers of those who have been served QOs/SHNs, subject to the fulfilment of eligibility criteria.

Obligation to provide a safe work environment

Under the Workplace Safety and Health Act, employers in Singapore have a duty to take, as far as is reasonably practicable, such measures as are necessary to ensure the safety and health of its employees at work. Employers also have similar obligations under common law.

Data privacy issues arising from contact tracing

The Personal Data Protection Commission advisory provides that organisations may collect personal data of visitors to premises for purposes of contact tracing and other response measures in the event of an emergency, such as during the outbreak of COVID-19.

In the event of a COVID-19 case, relevant personal data can be collected, used, and disclosed without consent during this period to carry out contact tracing and other response measures, as this is necessary to respond to an emergency that threatens the life, health, or safety of other individuals.

Organisations that collect such personal data must comply with the data protection provisions of the Personal Data Protection Act 2012.

Temperature taking

Employers are encouraged to take the temperatures of employees and visitors, and record their names, NRIC/FIN/Passport numbers (for visitors), and temperatures during this period of time. It is also permitted and advisable to monitor employees and visitors for other respiratory symptoms such as coughing, runny nose, shortness of breath, and breathing difficulties.

Regulatory enforcement

The local regulators take contraventions of the COVID-19 measures very seriously, and have been actively enforcing these measures against employers and work-pass holders.

As of 24 February 2020, the MOM has punished a total of 10 work-pass holders and nine employers for flouting MOM’s LOA requirements.

Copyright 2020 K & L Gates

ARTICLE BY Christopher Tan and Mayumi Soh of K&L Gates.
For more on working from home, see the National Law Review Labor & Employment law page.

Preparing Your Workplace to Address Coronavirus Risks: FAQs for Employers

Employers in the United States should continue to prepare for a widespread outbreak of COVID-19, commonly referred to as the coronavirus, as new cases are confirmed daily. These preparations include assessing work-related travel (as well as employee personal travel) and implementing more expansive work-from-home policies.

Although COVID-19 is new, the steps employers should take are not unlike the approaches recommended to address the annual flu season as well as prior outbreaks such as H1N1 (the “Swine Flu”), Severe Acute Respiratory Syndrome (“SARs”) or Ebola.

Employers should carefully monitor recommendations from the U.S. Centers for Disease Control and Prevention (“CDC”) and other public health agencies in connection with the creation of workplace plans and strategies. As this is an evolving situation, best practices for the workplace will continue to develop as conditions change. Carefully tailoring an employer’s plan so as to act consistently with current public health guidance will help keep employees, patients, customers and clients safe as well as reduce an employer’s legal risks. If an employer has an on-site medical professional, partnering with such an expert regarding the implementation of such a plan is strongly advised.

What is the coronavirus and how does it spread?

The novel coronavirus causes coronavirus disease 2019 or COVID-19. Reported cases include respiratory illness with symptoms of fever, cough and shortness of breath. It is spread mainly from person to person either in close contact with each other or through the transmission of respiratory droplets when an infected person coughs or sneezes. The number of cases continues to grow, but for now, most cases continue to be mild.

What steps should employers take to reduce the risk of the coronavirus spreading in their workplaces?

There is no vaccine to prevent the coronavirus. The best way to prevent the spread of any respiratory illness in the workplace is to exercise commonsense measures. Health officials, including the CDC, recommend the following preventive measures:

  • Sick employees should stay home from work until they are free of fever, signs of a fever, or any other symptoms for at least 24 hours without the use of fever-reducing or symptom-altering medicine.
  • Wash hands vigorously with soap and water or an alcohol-based hand rub for at least 20 seconds.
  • Avoid touching one’s face, especially eyes, nose and mouth.
  • Exercise respiratory etiquette and cover one’s mouth when coughing or sneezing.
  • Clean frequently touched surfaces.
  • Maintain at least three feet of distance between oneself and others, including those who are coughing, sneezing or have a fever.

What steps should employers take to prepare for employee communications?

Employers should take steps to be prepared for communicating important health and safety information to all their employees whenever such information needs to be shared. Employers may need to reach employees while outside the workplace and outside regular working hours. Employers should ensure that they have up-to-date contact information for all employees in case health and safety updates need to be communicated. Messaging regarding the coronavirus should come from a dedicated workplace representative to avoid the sharing of conflicting information and to prevent employee confusion and undue alarm.

What employment laws should employers consider when making decisions regarding the coronavirus?

Employers should consider the Occupational Safety and Health Act (“OSH Act”), the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), the Pregnancy Discrimination Act (“PDA”), the Family and Medical Leave Act (“FMLA”), state workers’ compensation laws and any federal or state anti-discrimination or disability laws as employers develop plans regarding the coronavirus.

Employers have a legal obligation to provide a safe and healthy working environment free from serious recognized hazards under the OSH Act. Taking reasonable steps to prevent the spread of communicable diseases, like COVID-19, may fall under this requirement. Employers should consider potential discrimination claims that could arise under the ADA, Title VII or the PDA. The ADA protects individuals who are disabled or who are regarded as disabled. The Equal Employment Opportunity Commission (“EEOC”) has stated that while the ADA’s requirements continue to apply, they do not interfere with or prevent employers from following CDC guidelines and recommendations regarding the coronavirus. The EEOC also has indicated that its previously issued guidance regarding the H1N1 pandemic is applicable here. Similar to the EEOC’s approach during the H1N1 pandemic, employer actions that might be viewed as discriminatory under other circumstances (such as requiring an employee to remain at home for a period of time upon returning from travel to certain countries) would not run afoul of the ADA when taken to limit workplace exposure to the coronavirus. This is because either COVID-19 will not be considered a disability because the resulting illness is mild or, alternatively, if COVID-19 becomes more severe and/or widespread, an employer’s actions to limit the spread of the coronavirus will likely be deemed justified given the direct threat posed to other employees, customers, patients or the public at large.

Employers should also take care not to discriminate against employees based on their national origin. Accordingly, employers should establish consistently applied and clearly communicated practices with regard to self-quarantining of employees. For instance, consistent and science-based practices should be followed when employees return from travel to certain countries facing significant outbreaks, rather than singling out employees on an ad hoc basis who may have visited their countries of origin. Recent reports suggest a heightened concern regarding possible workplace discrimination against employees of Asian descent.

While pregnant women may be more susceptible to viral respiratory infections or severe illness, the CDC has released no guidance establishing that such individuals are more susceptible to COVID-19 than the general population. Employers should thus ensure they are not engaging in disparate treatment of pregnant employees.

In addition to discrimination concerns, employers should consider what reasonable accommodations they may need to provide employees under the ADA or the PDA.

Employers also should be prepared to grant FMLA leave to employees who test positive for (or display symptoms of) COVID-19 or who require leave to care for an individual with COVID-19.

Lastly, employees who contract COVID-19 in the scope of their employment may be entitled to make claims under their employers’ workers’ compensation policies.

Should employers cancel work-related travel?

As of March 6, 2020, the CDC recommends avoiding all nonessential travel to China, Iran, Italy and South Korea and has issued travel alerts recommending that travelers practice enhanced precautions in Japan. These travel advisories extend to layovers in the affected areas. Moreover, entries into the United States of foreign nationals who have been in China or Iran in the 14 days prior to entering the United States have been suspended in many circumstances.

Employers should consider these travel advisories when formulating their business travel plans. Many employers are suspending all business travel to the affected areas. Employers face potential risk when requiring employees to travel to areas where the CDC and other federal agencies have advised against non-essential travel. Other employers are limiting or suspending all non-essential travel or canceling in-person attendance at conferences or meetings in light of the potential spread of the coronavirus.

In assessing work-related travel plans, employers should ensure that they do not single out certain groups (e.g., limiting a pregnant employee’s travel due to the risk of exposure to the coronavirus, but allowing other employees to travel).

Should employers cancel large conferences or other community events?

Employers planning events should stay informed about local coronavirus risks. The CDC is recommending event organizers and staff review existing emergency operations plans and focus on prevention strategies, such as frequent handwashing and encouraging both staff and patrons who are sick to stay home. If events are proceeding, the implementation of flexible refund policies may help encourage sick individuals to stay home. And organizers should have supplies that help prevent the spread of viruses such as soap, hand sanitizer and facial tissue available to employees and attendees. Organizers should also establish criteria with the venue and local public health officials to determine under what specific circumstances events will be postponed or canceled.

What should employers do when they suspect an employee was exposed to the coronavirus and is symptomatic?

An employer should send such an employee home and advise him or her to seek immediate medical attention. The employee should be required to remain at home until he or she no longer displays symptoms and is not contagious. The decision to discontinue home isolation should be made on a case-by-case basis, in consultation with health care providers and state and local health departments.

Are employees sent home due to exposure to the coronavirus (self-quarantined) entitled to paid leave?

Employers typically are not legally obligated to provide paid leave to employees who are sent home due to suspected COVID-19 infection or exposure unless state or local paid sick leave laws apply. However, employers should consider allowing employees to utilize paid leave under any available employer leave policies. If the employee is able to perform his or her job remotely, and is physically able to work, employers should consider allowing remote work during such self-quarantine period, even if such remote work is not consistent with the employer’s regular practices. Employers should consult with counsel to determine whether and when to offer paid or unpaid leave to employees facing quarantine situations. And any modification of an employer’s routine policies and practices to address this unique circumstance should be implemented consistently.

What should employers do if employees travel to affected areas (currently China, Iran, Italy, South Korea and Japan ) but do not display any symptoms upon return?

Many employers are encouraging (but not requiring) self-quarantining regardless of whether the employee is symptomatic. Others are requiring employees to self-quarantine for up to 14 days (the commonly presumed incubation period for the coronavirus) after returning from these areas. As the list of affected countries continues to expand and risk levels continue to change, employers should carefully monitor and reevaluate their practices.

Requiring self-quarantining protects other employees. On the other hand, requiring self-quarantining for those who have traveled to affected areas may expose an employer to potential claims under the ADA, Title VII, or other anti-discrimination statutes, especially where a forced quarantine situation results in the employee’s loss of income or other benefits. Such legal risks may be reduced where an employee is able to work remotely and thus is compensated during the quarantine period.

When employees work from home, are they entitled to a reasonable accommodation under the ADA, the PDA or other equal employment opportunity laws?

Employees are entitled to reasonable accommodations that will enable them to perform the essential functions of their positions. For example, if an employee has been provided the accommodation of a low-vision screen reader on his or her work computer, that employee should have access to such a screen reader as a reasonable accommodation when required to work at home.

Can employers ask employees if they have traveled to one of the affected areas?

Yes. Given the ongoing travel advisories and the recommendations of the CDC and other federal agencies regarding travel to affected areas and self-quarantining to limit the spread of the coronavirus, there is likely low risk in requiring employees to disclose their recent travel destinations.

Can employers require a return to work or fitness for duty exam to allow employees to return to work?

Employees who have been diagnosed with COVID-19 should only discontinue isolation after consulting health care providers and state and local health departments. Employers may require the employee to provide proof that isolation can be discontinued before the employee returns to work.

But for employees who have not been diagnosed with COVID-19, it practically may be difficult to receive a return to work exam given that there has been a shortage of testing kits to test for COVID-19. The CDC has also recognized that health care offices may be busy and it may be difficult for an employee with acute respiratory illness to validate their illness or return to work. Employers must take care to treat employees with similar symptoms in a consistent manner.

What should an employer do if an employee fears coming to work due to possible exposure in the workplace?

Creating and implementing consistent plans for preventing and addressing potential workplace exposure and communicating such measures clearly and effectively will go a long way to reducing employee fears of workplace exposure. Employers should assess the specific risk in the workplace on a case-by-case basis. Currently, federal guidance is focused on encouraging those who are sick (or may have been exposed to the coronavirus) to stay home. In the event of a more particularized risk, such as an actual case of exposure to the coronavirus in the workplace, employers may wish to encourage (or require) working from home or offer more lenient work from home options to its employees.

Should employers inform employees if there is an identified case of COVID-19 in the workplace?

Yes. Employees should be informed of confirmed cases in the workplace. But employers must ensure that employee confidentiality is maintained as required under the ADA, the Health Insurance Portability and Accountability Act (“HIPAA”) and any other state or federal law.

Should employees be encouraged to wear face masks?

The CDC has not recommended that healthy persons wear face masks. Face masks are reported to have no benefit for a healthy person in preventing their exposure to the coronavirus, although masks may provide some benefit if worn by sick persons in limiting their spread of the virus to others. The CDC has urged people to stop buying masks because such consumer behavior is depleting necessary resources from health care professionals who need them.

What about specific guidance for health care employers?

The CDC has issued specific guidance to try to prevent the spread of the coronavirus into, among, and between health care facilities, including monitoring patients and employees for fever or respiratory systems, encouraging employees to stay home if they have symptoms of respiratory infection and identifying which employees will care for patients with COVID-19. It is critical for health care facilities to have a plan in place to respond to any outbreak. There are potentially severe risks to patients facing health challenges if they are being cared for by employees who have been exposed to the coronavirus.

Is there a special risk for employees who handle packages or products shipped from an affected area?

The CDC has issued guidance that it is unlikely that the coronavirus can spread vis-à-vis products or packaging. Some employers may nevertheless decide to offer specific personal protective equipment (“PPE”) to those employees handling packages or products from affected areas, simply in an effort to mitigate employee fear or concern. In such cases, employees should be properly trained on the use and disposal of the PPE.

What other issues may employees working abroad face?

Consular offices may be closed due to the coronavirus outbreak. Currently, field offices in Beijing and Guangzhou are closed. Such closures may delay any communications with immigration officials

© 2020 Vedder Price

For more on the coronavirus, see the National Law Review’s New Coronavirus News section.

The 2019 Honig Act Means New Obligations for New Jersey Employers Around Cannabis at Work

Employers cannot afford to ignore the direct impact of the 2019 amendments to the law permitting legal medicinal marijuana use in New Jersey. Among the most important areas of concern, employers must be prepared to (1) create policies that will comply with federal, state and local laws, as well as maintain a safe workplace and (2) respond to a potential increase in positive drug tests and the resultant challenges to any employer action taken in response to a positive test result (e.g., denial of employment for an applicant or termination of the employment of a current employee).

New Jersey’s former Compassionate Use of Medical Marijuana Act (CUMMA) contained language stating:

[N]othing in [CUMMA] shall be construed to require… an employer to accommodate the medical use of marijuana in any workplace. N.J.S.A. 24:6I-14.

On July 2, 2019, Governor Murphy signed into law the Jake Honig Compassionate Use Medical Cannabis Act, N.J.S.A. 24:6I-2, et seq. (Honig Act), which replaced CUMMA. The revised employment law provisions of the Honig Act create job protections. The above-cited language from CUMMA changed, and the Honig Act provides as follows:

It shall be unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registrant with the commission [i.e., the Cannabis Regulatory Commission established pursuant to the law].

The Honig Act defines “adverse employment action” as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.” N.J.S.A. 24:6I-3. State regulations were adopted to support CUMMA (N.J.A.C. 8:64-1 et seq.) but no new regulations were promulgated in furtherance of the Honig Act.

The patient/employee-friendly provision moves New Jersey into the group of states with medical marijuana laws that expressly provide employment law protections for medical marijuana users (e.g., Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Nevada, Oklahoma, Pennsylvania, Rhode Island and West Virginia).

The Honig Act establishes a procedure employers must follow when an employee tests positive for marijuana. If an employee (or prospective employee) tests positive for cannabis, the employer is required to (1) provide written notice of the right to provide a valid medical explanation for the test result and (2) offer an opportunity to present a valid medical explanation for the result. N.J.S.A. 14-6I-9.

The employee or applicant has three (3) working days after receipt of the employer’s written notice to explain the result or request a retest of the original sample (at the employee’s expense). The Act does not define “working days.” A valid explanation for the positive test result may include an authorization for medical cannabis issued by a health care practitioner or proof of registration with the medical marijuana commission.

If an employee demonstrates she is a valid medical marijuana user, employers will not be permitted to use that alone as a basis to take adverse employment action, unless the employer can demonstrate that one of the federal exemptions applies.

The Honig Act permits employers to take adverse action if an employee possesses or uses an intoxicating substance during work hours, or if such use would require an employer to commit any act that would cause the employer to be in violation of federal law.

“Cannabis” has the meaning given to “marijuana” in section 2 of the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-2. The NJ Controlled Dangerous Substance Act includes cannabis as a Schedule I(e) hallucinogenic that has a high potential for abuse, has no accepted medical use in treatment in the United States, or lacks accepted safety for use in treatment under medical supervision. Accordingly, we assume “intoxicating substances” includes medical marijuana as it’s used in the Honig Act.

Nothing in the Honig Act requires an employer to commit any act that would cause the employer to be in violation of federal law, lose a licensing-related benefit pursuant to federal law, or lose a federal contract or federal funding. For example, most federal contractors are required to comply with the federal Drug-Free Workplace Act (DFWA), which precludes the possession or use of controlled substances at work sites. 41 U.S.C. §8101(a)(5)(B).

Future lawsuits surrounding marijuana use are likely to be focused on the types of reasonable accommodations employers should make and what jobs are too safety-sensitive to permit an accommodation for medical marijuana use. Due to the Honig Act’s infancy, it is not clear if New Jersey courts will follow precedent from other states imposing a burden on the employer to engage in an interactive process with the employee to determine if there are medical alternatives that are equally effective, and the use of which would not violate company policy.

In some other states, when there are no equally effective alternatives, the employer bears the burden of proving that the use of a medication would cause an undue hardship to the employer’s business to justify the employer’s refusal to make an exception to an anti-drug policy. In addition, the use of medical marijuana may be for an underlying condition meeting the definition of a disability, a condition that affords job protections, including the need to engage in the interactive process seeking to reach a reasonable accommodation.

For example, in Massachusetts, an employer may be able to show an undue hardship exists where accommodating the medical marijuana use would impair the employee’s performance of her work; pose an unacceptably significant safety risk to the public, the employee or fellow employees; or violate an employer’s contractual or statutory obligation and thereby jeopardize its ability to perform its business. We do not yet know how New Jersey will interpret what constitutes an undue hardship in accommodating an employee’s medical marijuana use.

On March 27, 2019, New Jersey’s Appellate Division, the second-highest court, issued an unpublished opinion in Wild v. Carriage Funeral Holdings, Inc. et al., A-3072-17T3 (March 27, 2019). Mr. Wild appealed dismissal of his lawsuit against his former employer alleging various Law Against Discrimination (LAD) violations and common-law defamation. His lawsuit claimed his employer discriminated against him for his use of medical marijuana, which he used as part of his cancer treatment. Both parties pointed the Appellate Division to the fact that “nothing” in CUMMA requires an employer to accommodate a medical marijuana user. Based on that the defendants argued, the plaintiff’s claims under the LAD could not go forward.

The Wild court analyzed whether the plaintiff pleaded a case under the LAD; it did not weigh and analyze proofs. The court concluded the plaintiff set forth allegations necessary to his cause of action and the matter was reversed and remanded for further proceedings. The Appellate Division held CUMMA’s declaration should not be construed to “require” an accommodation, but does not mean such a requirement might not be imposed by other legislation. N.J.S.A. 24:6I-14. Further, the court concluded that CUMMA’s refusal to require an employment accommodation for a user does not mean CUMMA immunizes employers from obligations already imposed elsewhere. Essentially, CUMMA does not limit the LAD by permitting an employer’s termination of a cancer patient’s employment by discrimination without compassion.

The Appellate Division rejected the argument CUMMA and the LAD are in conflict because CUMMA states that “nothing in this act shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace.” N.J.S.A. 24:6I-14. CUMMA intended to cause no impact on existing employment rights; CUMMA neither created new employment rights nor destroyed existing employment rights. CUMMA imposes no burden on defendants, and negates no rights or claims available to a plaintiff under the LAD.

The New Jersey Supreme Court agreed to review the case and heard oral argument on February 4, 2020. The State Supreme Court is considering the impact of the Honig Act’s amendments providing employment protections to medical marijuana users. Because the Honig Act was passed after the events leading to Wild’s termination, it is unclear how it will affect his case on appeal. The Court may address whether the Honig Act, as amended, grants employees a private right of action, and, if so, whether the amendments are retroactive. We anticipate the Supreme Court’s decision within the next three to six months.

While the Honig Act grants employee protections, it is likely that employees still will seek to bring suits under the LAD as a continued source of protection because, unlike the Honig Act, the LAD allows the possibility for punitive damages and contains a fee-shifting provision.

For now, employers should, at a minimum, make sure they comply with the notice and communication provisions in the Honig Act when an employee/applicant tests positive.

© 2020 Wilson Elser

For more on marijuana and employment see the National Law Review Labor & Employment section.

Protected Activity or Illegal Harassment? Clarification May Be Coming.

It is a difficult balance for employers between respecting the rights to speech and other protected activity of their employees and avoiding a hostile workplace created by such speech. All too often employees may express views that are protected, but in ways that may be intimidating to their co-workers and create a hostile work environment. This tricky balance may soon gain much needed clarification. The D.C. Circuit Court of appeals, in issuing a decision in the case of Constellium Rolled Products Ravenswood, LLC v. NLRB, 945 F.3d 546 (D.C.Cir. 2019) set up the possibility.

The case involved an employee who was notified of his termination after writing “whore board” on the employer’s overtime signup sheet by way of protest of the employer’s newly adopted overtime policy. The administrative judge had found that the speech was protected under the National Labor Relations Act Section 8(a)(1) and that it was an unfair trade practice by illegally restraining the employee’s ability to participate in union activity under Section 8(a)(3).

While the D.C. Circuit agreed with the administrative law judge and the NLRB that the employee had been protected under the Act, it faulted the NLRB’s analysis for failing to take into consideration the employer’s “obligations under federal and state anti-discrimination laws to maintain a harassment-free environment.” 945 F.3d 546, 551.  The court then remanded the case to the NLRB to consider the balance between the employee’s protected activities and the employer’s responsibility to provide a harassment-free environment. This will potentially give the NLRB a chance to establish a framework in which to balance these types of cases.

The employer, in its arguments set forth two different proposed tests that could have found the employee’s speech to be unprotected due to the vulgar and offensive manner in which it was done. The company put forth a totality of the circumstances test, which would take into account the company’s anti-harassment policies in effect at the time. The employer alternatively proposed that the NLRB adopt the similar four-part test set forth in Atlantic Steel Co., 245 NLRB No. 107 (1979) that would take into consideration: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.

The test that is chosen will have a substantial effect on how employers can go about protecting their employees from harassment and intimidation while not running afoul of the Act. Great attention should be paid to the result.

© 2020 by Raymond Law Group LLC.

For more on NLRA Protected Speech, see the National Law Review Labor & Employment law section.

National Labor Relations Board Tightens Standard for Joint Employer Status

A business is a joint employer of another employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, according to a recently unveiled and long-awaited final rule from the National Labor Relations Board (NLRB). This means that a business must exercise “substantial direct and immediate control” over such issues as wages, benefits, hours of work, hiring, discharge, discipline, supervision and work direction. The rule, which takes effect on April 27, 2020, tightens the legal test the NLRB uses to determine whether workers are jointly employed by affiliate businesses, including franchisors and franchisees.

Specifically, the new rule substantially tightens the standard for joint employer status articulated by the NLRB in its 2015 Browning-Ferris decision. In that decision, the NLRB departed from a half-century’s worth of precedent in determining that it could consider employers who exercised indirect control over the terms and conditions of another employer’s employees, or who reserved the right to exercise such control, as joint employers. The new rule expressly rejects this standard, making clear that neither “indirect” control nor a reservation of right to control terms and conditions of employment is sufficient, on its own, to establish joint employer status. The new rule returns the NLRB to its pre-Browning-Ferris jurisprudence, which required actual and direct control. The new rule also notes that “sporadic, isolated, or de minimus” direct control will not be enough to warrant a finding of joint employment.

The issue of joint employer status is significant for businesses because workers and the unions that represent them can collectively bargain with joint employers and hold them jointly liable for unfair labor practices, which are violations of federal labor law. The Browning-Ferris decision, with its broader test for joint employer status, engulfed more contractors and franchisors into costly and time-consuming labor disputes and contract negotiations. By rejecting the Browning-Ferris standard, the NLRB’s new narrower test brings certainty to this area of law by ensuring that labor disputes and contract bargaining only involve those contractors and/or franchisors that exercise direct control over the employees of another employer. NLRB Chairman Jon Ring made this very point when he explained that “employers will now have certainty in structuring their business relationships, [and] employees will have a better understanding of their employment circumstances.”

This new rule is particularly important to franchisors and comes on the heels of the Department of Labor’s (DOL) new joint-employer rule, which also affected franchisors. Since the Browning-Ferris decision, there has been uncertainty about how much “control” is too much. This new NLRB rule provides welcomed clarity for franchisors, and will allow franchisors to provide more operational support and guidance to franchisees, which should result in franchisees having the opportunity to run their small businesses in a manner that will make a difference in their communities. Franchisors can protect their brands through appropriate brand standards and require franchisees to meet those standards without the heightened risk of being deemed a joint employer of their franchisees’ employees.

However, franchisors must be mindful of various state joint employer regulations, which may be broader in scope than the new rule, as well as plaintiffs’ lawyers asserting claims based on control theories. Franchisors should continue to review their business models and business practices (training, technology and field support) to ensure they are not involved in the exercise of control over a franchisee’s employees. Franchisors also should appropriately address these issues in their franchise agreements and operations manuals.

In sum, the NLRB’s new joint employer test is a win for employers, returning the NLRB’s joint-employer status jurisprudence to the narrower direct and actual control standard. Under this new test, contractors and franchisors who do not want to become joint employers should be careful to avoid exercising direct control over another employer’s employees’ terms and conditions of employment, including wages and benefits. The new rule’s clarity allows businesses to know where they stand as a potential joint employer and to prepare accordingly.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.

For more on NLRB decisions, see the National Law Review Labor & Employment law section.

Mitigating Payment Fraud Risks

For businesses that thrive on person-to-person transactions, cash is quickly being replaced by cards, as well as tap-to-pay systems, mobile wallets and QR-based payment systems. These technologies will continue to dominate the market in the near future, but the long-term future of the payment card industry will likely be shaped by the impact of blockchain and artificial intelligence. These developments will eventually also impact risk management, marketing and financial planning, as they present opportunities for serious risks, including fraud. Hence, it is imperative for risk management professionals to plan for these short- and long-term changes in the industry.

Strong risk monitoring requires proactively assessing threats and planning mitigation measures to minimize risk impact on the company or organization. To help mitigate payment fraud risks, businesses can take the following steps:

Train your Employees Regularly

The more regularly you train your employees, the more likely are they to spot suspicious behavior, no matter what payment technology the business uses. Repeated and regular trainings are essential because employees tend to forget what they have learned with time. These training workshops should teach the workers to never accept damaged cards from customers, confirm customer identities, and never enter a card number manually.

Use Contactless and EMV-Enabled Terminals

As payment technology changes, businesses must evaluate what options are safest and least prone to fraud. Currently, businesses should use EMV (short for Europay, Mastercard and Visa), which involves chips embedded into payment cards—a significant step in making transactions safer. The introduction and adoption of EMV-enabled secure terminals, particularly when using PIN and EMV security together, has helped merchants and customers prevent fraudulent transactions.

Contactless smartcards such as chip and magnetic stripe cards use contactless payment, which can present another secure way to process transactions. Most EMV terminals are also enabled with contactless payment. At such terminals, a fast and secure transaction is possible using Near Field Communication (NFC) or Radio-Frequency Identification (RFID) via smartcard or smartphone. If a merchant chooses to use contactless payment without PIN, they can put a limit to the amount spent on each contactless transaction to further minimize risk.

Beware Uncommon Transactions

Transactions that involve unusually large purchases could be a sign of potential fraud. Businesses should examine such transactions closely and confirm the identity of the customer. Similarly, if several purchases are made with a card in a short timeframe, it could indicate that the card was stolen and being used by someone other than the owner.

Maintain Online Security

As merchants and consumers shift to contactless and EMV-enabled point of sale terminals, risk has shifted towards online transactions. To mitigate this risk, it is important for online businesses to use the Address Verification Service (AVS), which verifies that the billing information matches the one registered with the card issuer. Vendors should also ask for Card Verification Value 2 (CVV2) to verify that the user has the card in hand when placing the order. Another important check is to put a limit on an IP address for the number of cards it can use for online transactions.

Prevent Employee Fraud

Employee fraud is always a major concern for risk management professionals.  Businesses should remember to keep an eye on credit card activity, particularly returns, as employee theft often shows up in fake discounts or returns. Companies should create alerts that set limits on returns at stores and notify management any time those limits are exceeded.

 

Risk Management Magazine and Risk Management Monitor. Copyright 2020 Risk and Insurance Management Society, Inc. All rights reserved.

New NLRB Rule Defining Joint-Employer Status to Take Effect

The National Labor Relations Board has announced the issuance of its final rule governing joint-employer status. The new rule, which was first proposed in September 2018 and has been the subject of extensive public comment, will become effective April 27, 2020.

The critical elements for finding a joint-employer relationship under the new rule is the possession and the exercise of substantial direct and immediate control over the terms and conditions of employment of those employed by another employer.  The essence of the new rule is described in the Board’s February 25, 2020 press release:

To be a joint employer under the final rule, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees. The final rule defines key terms, including what are considered “essential terms and conditions of employment,” and what does, and what does not, constitute “direct and immediate control” as to each of these essential employment terms. The final rule also defines what constitutes “substantial” direct and immediate control and makes clear that control exercised on a sporadic, isolated, or de minimis basis is not “substantial.”

Evidence of indirect and/or contractually reserved control over essential employment terms may be a consideration for finding joint-employer status under the final rule, but it cannot give rise to such status without substantial direct and immediate control. Importantly, the final rule also makes clear that the routine elements of an arm’s-length contract cannot turn a contractor into a joint employer.

The new rule marks a return to a standard similar to that which the Board followed from 1984 until 2015.  In 2015, in Browning-Ferris Industries, the Board adopted a much more liberal test under which a finding that the putative joint employer possessed indirect influence and the ability (including through a reserved contractual right) to influence terms and conditions, regardless of whether the putative joint employer actually exercised such influence or control, could result in it being held to be a joint-employer of a second employer’s employee.

As a practical matter, the standard under the Board’s new rule should make it much more difficult to establish that a company is a joint-employer of a supplier, contractor, franchisee, or other company’s employees. The new rule will mean that a party claiming joint-employer status to exist will need to demonstrate with evidence that the putative joint-employer doesn’t just have a theoretical right to influence the other employer’s employees’ terms and conditions of employment, but that it has actually exercised that right in a substantial, direct and immediate manner.

This new rule is likely to make it much more difficult for unions to successfully claim that franchisors are joint-employers with their franchisees, and that companies are joint-employers of personnel employed by their contractors and contract suppliers of labor, such as leasing and temporary agencies.

©2020 Epstein Becker & Green, P.C. All rights reserved.

For more on the Joint-Employer Rule see the National Law Review Labor & Employment Law section.

Sticks and Stones May Break Bones, But Words May Constitute Unlawful Discrimination

In recent months, there have been several news stories about the legal implications of inappropriate and/or offensive language in our society, generating discussion about whether such language is, or should be, unlawful in certain circumstances.  This past fall, the Massachusetts Legislature held a committee hearing on a widely-publicized bill which sought to penalize the use of “bitch,” by imposing a fine of up to $200 for any person who “uses the word ‘bitch’ directed at another person to accost, annoy, degrade or demean” another person.

While this proposed legislation, fraught with Constitutional issues involving the exercise of free speech, was largely decried and gained no traction, it does highlight an important question: In what circumstances may offensive and demeaning comments constitute unlawful discrimination?  In fact, in January, Chief Justice John Roberts, during oral arguments in Babbe v. Wilkie, asked the hypothetical question whether the phrase “OK Boomer” would qualify as age discrimination.

The answer to Chief Justice Robert’s question is not a bright-line “yes” or “no.” Context matters. For example, in connection with a hostile work environment claim, one of the central legal issues is whether the conduct in question was severe or pervasive. As a general rule, a single, isolated comment will not be actionable as creating a hostile work environment, but in some instances, it may. See Augis Corp. v. Massachusetts Comm’n Against Discrimination, 75 Mass. App. Ct. 398, 408-409 (2009) (noting that a supervisor who calls a black subordinate a f***ing n***** “has engaged in conduct so powerfully offensive that the MCAD can properly base liability on a single instance”).

Courts do not impose a numerosity test. Rather, the legal analysis is focused on whether the discriminatory comments “intimidated, humiliated, and stigmatized” the employee in such a way as to pose a “formidable barrier to the full participation of an individual in the workplace.” See Thomas O’Connor Constructors, Inc. v. Massachusetts Comm’n Against Discrimination, 72 Mass. App. Ct. 549, 560–61(2008); Chery v. Sears, Roebuck & Co., 98 F. Supp. 3d 179, 193 (D. Mass. 2015) (noting that, in the context of a hostile work environment based upon race, “[i]t is beyond question that the use of the [“N” word] is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination”).

Similarly, in the context of a disparate treatment claim (e.g., allegations that employee was terminated based on unlawful age bias), evidence that the decision-maker referred to the employee as a “Boomer” should not be evaluated in a legal vacuum. Rather, this evidence may be presented to the jury as just one piece of a “convincing mosaic of circumstantial evidence” from which a fact-finder could properly determine that the termination decision was driven by discriminatory animus based upon age. See Burns v. Johnson, 829 F.3d 1, 16 (1st Cir. 2016).

So, while sticks and stones may break bones, words also do harm and depending upon the circumstances, may result in legal claims and liability.

© 2020 SHERIN AND LODGEN LLP

For more on Free Speech, see the National Law Review Constitutional Law section.

EMPLOYERS BEWARE: $2.4M Jury Verdict Serves as a Reminder of the Duty Employers Owe to Their Employees

A recent New Jersey Superior Court case involving PNC Bank as a defendant should serve as an eye-opening reminder to all employers that it has a duty to maintain a safe and healthy workplace for all employees, free from harassment, discrimination and any other tort or prohibited conduct. Notably, this duty to maintain a safe and healthy workplace not only applies to the eradication of wrongdoing by employees, but also affords protection to employees from improper acts of non-employees such as customers, clients, vendors, independent contractors, etc.

Following a jury trial in Essex County, PNC Bank was deemed liable in the amount of $2.4 million in damages, consisting of both back and front pay, as well as past and future emotional distress damages, awarded to a former employee who claimed she was the victim of a sexual assault/gender discrimination by a bank customer in 2013. The Plaintiff argued that the customer in question was known by the Bank to have groped and harassed others in the past, yet the Bank did not take the appropriate, remedial measures to ensure her safety and prevent it from happening again.

Although the Bank claims that it had no such knowledge of the prior bad acts of the customer and had no way of knowing any such assault would occur towards the Plaintiff, the jury clearly did not accept that defense.

This case is yet another example on how important it is to have a well-established and widely distributed anti-harassment and discrimination policy and training for all staff in the workplace, applicable to all those susceptible to harassment or discrimination in the workplace, whether it be by fellow employees or otherwise, such as customers or guests.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

For more about employer responsibilities, see the National Law Review Labor & Employment law section.