Labor & Employment Insights

On August 3, 2020, the US District Court, Southern District Court of New York, issued its opinion in State of New York v. U.S. Department of Labor, et al. striking down four material components of the US Department of Labor’s (“DOL”) regulations implementing the Families First Coronavirus Response Act (“FFCRA”).  The Court’s opinion comes approximately four months after the effective date of the regulations and five months before the FFCRA is scheduled to expire.

Background. The FFCRA incorporates the provisions of the Emergency Family and Medical Leave Expansion Act (“Expanded FMLA”) entitling employees up to 12 weeks of paid leave if they are unable to work because of the closure of a child’s school or place of daycare during the COVID-19 pandemic.

The Emergency Paid Sick Leave Act (“Emergency PSL”), also incorporated within the FFCRA, requires covered employers to provide employees up to 80 hours of paid sick leave if the employee is : (1)  subject to a government quarantine or isolation order related to COVID-19; (2) has been advised by a heath care provider to self-quarantine due to concerns related to  COVID-19; (3) experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) caring for an individual subject to a quarantine or isolation order by the government or healthcare provider; (5) caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19; or (6) experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

The COVID-19 pandemic has interrupted households and working families everywhere.  As states begin to reopen, employers across the country are constructing return to the workplace plans that incorporate changes to physical and behavior protocols within their buildings and office space. As employees look to reenter the workplace, many working parents are faced with a similar issue – how to safely reopen the home to household employees, including nannies, tutors, dog walkers, cleaning staff, etc.

Whether you’re welcoming back a former employee, or hiring someone new, it is imperative that you construct a thoughtful return to work plan for those reentering your household.  While an open and honest conversation about these challenges is a good starting point, the best source of protection is a written agreement between the parties, which formalizes expectations and eliminates areas of question down the road.  Your “return to the household” plan or contract should take into account the following principles:

• Disinfecting and cleaning measures;

Lindabury partner Kathleen M. Connelly of the firm’s Employment Law group discussed with ROI-NJ the question her clients have been asking most in regard to office reopenings, which is how to deal with employees who are reluctant to return to work due to a generalized fear of COVID contraction. While employees returning to the workplace continue to have significant leave protection for COVID and non-COVID absences through December of 2020, employees can still be terminated if they refuse to return to work, and there are certain ways employers can communicate and accommodate their staff, which is also outlined in the article.

You can read the entire transcript here.

In response to the COVID-19 public health emergency, Congress passed the Families First Coronavirus Response Act (the “FFCRA”) requiring employers with 500 or less employees to provide paid sick leave and paid family leave to qualified employees affected by the pandemic. These benefits are in addition to any other earned sick leave, vacation or other paid time off benefits offered by the employer. These additional benefits are temporary and are only available to employees through December 31, 2020.

Posting requirement: Now that employers are preparing for employees to return to the workplace, employers covered by the FFCRA must prominently display the U.S. Department of Labor’s poster entitled Employee Rights – Paid Sick Leave and Expanded Family and Medical Leave under the Families First Coronavirus Response Act, a copy of which can be found here.

Distribution of Employee Rights publication: Both the federal and state governments are encouraging employers to continue to permit employees to work remotely to reduce the headcount in the workplace and potential spread of the virus. Covered employers who plan to continue remote work arrangements should therefore distribute the DOL’s Employee Rights publication to these employees, if not to all employees, to ensure employee awareness of leave rights under the FFCRA.

I. When Can America Go Back To Work?

As employers and employees increasingly chafe at the bit to return to the workplace, businesses must look to state and local stay-at-home directives to determine when they can reopen. It is anticipated that this will occur in phases and will likely depend on the nature of the business and jurisdiction where it is located.

New Jersey: New Jersey’s Stay-At-Home order was initially expected to expire on May 8, 2020. Although Governor Murphy has permitted state and county parks and golf courses to reopen on May 2, 2020, the Governor announced that the stay-at-home directive will remain in place indefinitely until the following six principals in his plan entitled The Road Back are sufficiently met: