Now is the time for employers to formulate action plans for returning employees to the workplace. We have developed the following FAQ’s to guide the development of your return-to-work plan.
Requiring Employees to Return to Work
(1) Can employees decline reinstatement from a furlough?
If an employee has no reason protected by law for not returning to work, then she may be disqualified from unemployment benefits. Following are some common COVID-based protected reasons that would delay an employee’s active return to work.
New Jersey Paid Sick Leave Act. If an employee has not exhausted her sick leave, she can use her accrued earned sick time for the following reasons:
- Her own COVID-related illness;
- A family member’s COVID-related illness;
- Compliance with a quarantine order for her or her family member;
- Her child’s school closure; and
- In some instances, for generalized fear of COVID-19 exposure.
Federal Emergency Paid Sick Leave Act. Employees may receive up to 80 hours of pay (with certain limitations) for the following reasons:
- They are subject to a quarantine or isolation order (or are caring for an individual under such an order);
- They have been advised by a healthcare provider to self-quarantine (or are caring for an individual who has been so advised); and
- They are experiencing COVID-19 symptoms and are seeking a medical diagnosis.
New Jersey Family Leave Act. An employee may request leave to care for a family member and/or child due to school closures related to COVID-19.
Federal Emergency Family and Medical Leave Expansion Act. An employee may also be eligible for 12 weeks of leave (10 weeks at partial pay) to care for a child due to COVID-19-related school closures.
(2) How will unemployment consider claims by employees who refuse reinstatement?
The New Jersey Division of Unemployment Insurance takes the position that an employee is required to accept offers of suitable work, or she may be declined for unemployment benefits for the week in which she declines the job and the subsequent three weeks.
A “suitable job” depends on a variety of factors, including where the employee lives and the distance she travels to a new position. In short, a job is suitable if it is reasonably similar to her prior position.
The unemployment statute also explains that in determining whether a claimant has good cause to decline an opportunity of employment, consideration is given to the health, safety, morals, individual’s physical fitness, prior training, experience, prior earnings, length of unemployment, prospects for securing work in the employee’s customary occupation, and the distance of the available work from her residence.
(3) Does an employer have a duty to notify the New Jersey Division of Unemployment if an employee refuses reinstatement after a furlough?
The New Jersey Division of Unemployment Insurance requires you to immediately notify it within 48 hours of an employee’s failure to return to work after an offer of employment is made. You can notify the division by completing and returning a Form BC-6 “Notice of Failure to Apply For, or to Accept, Suitable Work.” You will be required to include the date you offered the position, the reason for the employee’s refusal to accept the offer, and the details about the specific position offered.
You are also required to submit Form B-187Q to the division on a quarterly basis. The Form B-187Q requires you to provide proof you offered employment, the date it was offered, and the employee’s reason for refusing the work.
(4) Can an employer choose whom to recall from a furlough based on its assessment of risk to the employee of contracting COVID-19 and spreading it throughout the workplace?
No. You may not select employees for return based upon any considerations of risk for COVID-19. You should implement uniform criteria for selecting employees for recall. If your selection criteria have an unequal impact on certain categories of employees (for example, younger employees are disproportionately recalled), you will be subject to legal exposure.
Keeping the Workplace Safe
(5) What measures can employers take to ensure the health and safety of the workplace?
The Occupational Safety and Health Administration (OSHA) requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees.
To minimize the risk of complaints filed with OSHA and/or workers’ compensation claims, you are encouraged to follow the recommendations of the U.S. Centers for Disease Control and Prevention (CDC) for maintaining a healthy work environment. CDC and state-mandated recommendations include, but are not limited to:
- Ensuring sick leave policies are flexible and consistent with public health guidance, and employees are aware of and understand the policies.
- Reviewing HR policies and procedures to ensure they are consistent with public health recommendations.
- Connecting employees with employee assistance programs (EAP), if available.
- Providing employees with break time for repeated handwashing throughout the workday.
- Placing conspicuous signage alerting staff and customers to keep six feet of physical distance.
- Taking measures that support respiratory etiquette and hand hygiene for employees, customers, and worksite visitors.
- Performing routine environmental cleaning and disinfection.
- Performing enhanced cleaning and disinfection after persons suspected or confirmed to have COVID-19 have been in the facility.
- Isolating employees who appear to have COVID-19 related symptoms or who have tested positive for COVID-19.
- Discouraging employees from using other employee’s phones, desks, offices, or other tools and equipment.
- Providing disinfecting supplies, such as wipes and hand sanitizer, in multiple locations throughout the workplace.
- Limiting in-person meetings and gatherings and using videoconferencing and/or teleconferencing whenever possible.
- Encouraging employees to notify their employer if they are experiencing COVID-19 symptoms, have tested positive for the virus, or if someone in their family is experiencing symptoms or has tested positive.
On a practical level, this means that when considering the new workspace, it should not only look clean but also be fairly sparse. To ensure social distancing within the confines of smaller workspaces, you may be forced to implement staggered shifts or rotating days/schedules. You must also consider maintaining supplies of personal protective equipment for employees, such as gloves and masks.
(6) What should employers do if an employee reports unsafe working conditions?
On April 8, OSHA issued an advisory notice indicating employers are prohibited from retaliating against employees who report unsafe and unhealthful working conditions during the COVID-19 pandemic. Retaliation can include termination, demotion, denial of overtime, denial of a promotion, and/or reduction in pay or hours.
As with all employee complaints, you are advised to be proactive in handling the employee’s concerns and to take swift and prudent remedial actions in addressing any health-and-safety-related issues. If no action is warranted, you should document your investigation of the employee’s complaint and explain why no remedial action is needed.
On July 21, Genova Burns attorneys Brigette N. Eagan and Sharina Rodriguez will provide timely advice on recalling employees to the workplace as New Jersey moves into Stage 2 of its re-opening plan. It is important for employers to effectively plan return-to-work strategies, while navigating through a myriad of employment discrimination, leave, and disability-accommodation laws. To join them for “Transitioning Employees From Remote to In-Person Work,” click here.
Medical Inquiries
(7) Can an employer screen employees by administering COVID-19 tests and taking employees’ temperature at work?
Yes. The Equal Employment Opportunity Commission (EEOC) has determined that, considering the risks associated with COVID-19, screening in the workplace is permissible. Confidentiality restrictions apply, and there are limitations to permissible medical inquiries.
(8) Does an employer have a duty to inform employees of a colleague’s positive COVID-19 test?
If an employee tests positive for COVID-19, you should inform coworkers of their possible exposure. It is unlawful, however, to disclose the name of the positive employee.
(9) Can an employer direct an employee who is showing COVID-19 symptoms to go home?
Yes. You have a duty to protect all employees and, given the risks associated with COVID-19, you may send employees with COVID-19 symptoms home.
Enforcing Attendance Requirements
(10) Should employers require employees to present a positive COVID-19 test to be eligible for leave or excused absences?
No. Considering that COVID-19 tests are still limited and the delay in testing results—coupled with how quickly the virus can spread throughout the workplace—employers should allow employees to take leave if they have COVID-19 symptoms or have been exposed to someone with COVID-19, even if they have not tested positive.
(11) Can an employer terminate an employee who has been unable to work due to COVID-19?
No. On March 20, Governor Philip Murphy signed New Jersey Assembly Bill 3848, which prohibits employers (with few exceptions) from terminating or refusing to reinstate an employee who has or is likely to have COVID-19.
Bottom Line
As with all policies and procedures, you should ensure any return-to-work plan is implemented uniformly, without a disproportionate impact on any protected class. You must remember that although the pandemic has created a crisis method of operating, once the dust settles, employers will be held accountable to New Jersey and federal employment discrimination laws for at least up to two years.
For more information regarding planning and preparing your workforce to return to work, please contact Dina M. Mastellone, chair of Genova Burns LLC’s human resources counseling and compliance group, at dmastellone@genovaburns.com or Brigette N. Eagan, counsel in the firm’s human resources counseling and compliance practice group, at beagan@genovaburns.com.