COVID-19 And The New Jersey Workplace

Our lives are all being significantly impacted by the worldwide COVID-19 pandemic. And as some areas of the country move towards mandatory lockdowns and business closures, many of our provider and facility clients are facing difficult choices with respect to scaling down operations and staff. After all, healthcare providers are not only impacted by COVID-19 in their capacity as caregivers, but also as employers.

As we noted earlier this week, healthcare clinics and facilities in New Jersey are “essential services” and therefore not required to close or limit their hours under Governor Murphy’s Executive Order 104. But many providers, particularly those offering predominantly elective or non-emergent services, have seen a dramatic increase in cancelled appointments due to the current focus on social distancing.

While the news has been littered with stories of legislative developments involving paid leave and other initiatives focused on protecting the rights of workers negatively impacted by COVID-19, it is critical for New Jersey providers to understand that these laws do not impact your right to impose temporary layoffs or furloughs (hours or shift reductions) in response to a dramatic decrease in patient volume. Indeed, New Jersey employers remain largely free to make staffing decisions to address the business realities imposed by COVID-19.

That said, earlier today, the New Jersey Senate unanimously passed A3846, which was previously passed by the New Jersey Assembly earlier this week. The bill, which is expected to be signed by Governor Murphy shortly, creates the “Temporary Lost Wage Unemployment Program.” This program is two-fold. First, it will allow workers to claim lost wages caused by work absences necessitated by their own illness, to care for an ill family member, or due to the closure of their child’s school or childcare facility. And second, it will allow employers who voluntarily pay wages to workers under COVID-19 related quarantine to seek relief.

A3848, also unanimously passed by the Senate earlier today and by the Assembly earlier this week, makes it unlawful to terminate or penalize an employee who requests time off based on a recommendation from a medical professional that the employee take time off work for a specified period of time because the employee has, or is likely to have, an infectious disease that may infect others at the employee’s workplace. Notably, A3848 does not mandate that an employer provide paid leave to workers under COVID-19 related quarantine.

Whether forced to consider layoffs or furloughs or not, New Jersey employers are no doubt facing employees who for a variety of reasons are either unable or unwilling to continue working as normal. In wading through the various issues associated with these circumstances, the New Jersey Department of Labor published guidance on what benefits are available to employees who are unable to work—either due to their own personal circumstances or based on an employer’s decision to impose layoffs or furloughs.

On the federal side of the house, last night President Trump signed the Family First Coronavirus Response Act (the “FFCRA”) into law, which will become effective April 2. The FFCRA has four primary components. First, it enacts the Emergency Family and Medical Leave Act, which expands the Family Medical Leave Act (“FMLA”) to include leave necessitated by the need to care for a child whose school or place of care has closed. Second, it enacts the Emergency Paid Sick Leave Act, which requires employers to provide paid leave associated with several categories of COVID-19 related absences. Third, it enacts the Emergency Unemployment Insurance Stabilization and Access Act, which expands access to unemployment insurance benefits and provides funding for states to pay claims. And finally, the FFCRA imposes additional COVID-19-related OSHA (Occupational Safety and Health Administration) requirements on healthcare clinics and facilities related to developing and implementing infectious disease exposure control plans.

In all, these are interesting times indeed. And our healthcare provider clients are faced with unique challenges, both as caregivers and as employers. On the employer-front, the laudable moves by state and federal government to intervene on behalf of workers has created additional complexity for sure. And more is certain to come. So before taking any significant steps with respect to your staff during the current crisis, we strongly recommend that you seek counsel—either from us, or from our very competent colleagues in the employment and labor bar.

To speak with one of our attorneys on these or any other COVID-19-related issues, we are available as always at 609-799-5150 or info@buttacilaw.com.

Stay safe.

Posted in: Compliance, Human Resources, Regulation, Risk Management