The 10 Most Frequently Asked Questions and Answers About New Jersey’s New Paid Sick Leave Law

Fall brings requests for time off for school conferences.  Winter brings absences for colds and flu.  The New Jersey Paid Sick Leave Law (the “Sick Leave Law”) provides paid sick leave to virtually every New Jersey employee to attend to these needs.  The Sick Leave Law became effective on October 29, 2018, and requires all New Jersey employers, regardless of size, to provide paid sick leave for full-time, part-time, casual, and seasonal employees.  Sick leave may be used for the employee’s own medical condition, or the medical condition of the employee’s family member.  Employees may also use paid sick leave for absences due to public health emergencies and absences related to domestic violence suffered by the employee or the employee’s family member.  Finally, paid sick leave may be used by the employee to attend school conferences and events. Employers may choose to either allow employees to accrue sick leave at a rate of 1 hour for every 30 hours worked, up to a maximum of 40 hours per year, or “frontload” the 40 hours of sick leave at the beginning of the benefit year.

In this article, we explore the 10 most frequently asked questions we have been receiving in assisting employers to comply with the requirements of the new law:

  1. When do employees accrue sick leave and how soon may they start using it?

The law and the proposed regulations conflict on this issue as it pertains to current employees. The statute states that for employees who were hired before October 29, 2018, earned sick leave begins to accrue on October 29, 2018. The current employee can use his or her earned sick leave 120 calendar days after his or her start date. This means that current employees can use paid sick leave as soon as it is accrued, and if an employer frontloads the full entitlement of paid sick leave, then the employee can use that leave immediately.

The proposed regulations, however, provide that current employees cannot use paid sick leave until the 120th calendar date after the employee commences employment, or February 26, 2019, whichever is later. We have the statute, on one hand, that allows current employees to use their accrued paid sick leave immediately, and the proposed regulations, which state that they must wait until February 26, 2019.  How do employers comply with the Sick Leave Law considering this conflict?  There is no clear-cut answer, but instead employers must look at their current PTO policies and benefit year.  Employers must also determine if any segment of the workforce is receiving less than the full complement of leave provided for under the law (and not the proposed/draft regulations).

The statute and regulations are consistent with respect to new hires.  Employees hired after October 29, 2018, accrue paid sick leave immediately on the employee’s first day. New employees cannot use accrued paid sick leave until the 120th calendar day after the employee commences employment.

  1. Do I need to take any action if I already offer paid time off (“PTO”)?

It depends.  An employer’s PTO policy will only be compliant with the Sick Leave Law if the employer provides at least the minimum amount of sick time as required by the Sick Leave Law (1 hour of paid sick leave for every 30 hours worked). An employer may offer a more generous PTO policy; however, the policy must meet or exceed all the requirements of the Sick Leave Law and allow employees to use the time for all the reasons permitted by the law.

  1. What is the interplay between the Sick Leave Law, the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA)?

The FMLA provides 12 weeks of unpaid job-protected leave for employees suffering from a serious health condition or for the care of a family member with a serious health condition. Similarly, the NJFLA provides 12 weeks of unpaid job-protected leave for employees to care for a newly born or adopted child, or for the care of a family member with a serious health condition. When an employee is eligible to care for a family member under both FMLA and NJFLA, the leave may run concurrently pursuant to the employer’s policy.

The Sick Leave Law may also be used for illness by the employee or the employee’s family member. The Sick Leave Law, however, limits leave up to 40 hours, and, unlike the FMLA and NJFLA, the time off is paid. It is feasible that situations may exist where the Sick Leave Law runs concurrent with either FMLA or NJFLA, or both. Notably, the Sick Leave Law carries with it an extremely broad definition of “family member,” which includes anyone “whose close association with the employee is the equivalent of a family relationship.” This means that New Jersey employees may use paid sick leave to care for a person, regardless of biological or legal relationship. This allows employees to take leave to care for individuals not covered as family members under the FMLA and NJFLA.

Another important distinction is that unlike the FMLA or NJFLA, the Sick Leave Law may not be used to bond with a newborn or newly adopted or fostered child.  In addition, FMLA and NJFLA take precedence when they require employers to do more than the Sick Leave Law.

Finally, the FMLA and NJFLA only apply to employers that meet certain criteria and only eligible employees (based on length of service and hours worked) are entitled to take FMLA and NJFLA leave.  The Sick Leave Law applies to almost all New Jersey employees and employers, so employees ineligible for FMLA or NJFLA will likely be entitled to paid sick leave, particularly those employed by small businesses.

  1. If my municipality already has a paid sick time law, does the new law affect my
    workforce?

Yes. The new law fully preempts and displaces the municipal ordinances that previously provided paid sick leave in 13 municipalities in New Jersey.

  1. Can employers require that employees provide notice when taking sick leave?

            Yes and No. Employers can require that employees provide up to 7 days’ notice of “foreseeable” absences. Foreseeable absences include time off for scheduled medical appointments. Where the need for leave is unforeseeable, an employer may only require notice “as soon as practicable,” and only if the employer has notified the employee, in advance, of this notice requirement.

Employers may only require documentation to substantiate the need to sick leave under two circumstances: 1) when the employee is absent for 3 or more consecutive days or 2) when the employee is absent during established “black-out dates.” Blackout dates must be limited to verifiable high-volume periods or special events (like the winter holidays). Importantly, employers must provide notice to employees of these backout dates.

  1. If we offer a more generous PTO policy than the law requires, are we exempt from the law’s carry-over provision?

          No. Employers whose employees accrue PTO in excess of the law’s requirement are still required to carry-over a maximum of 40 hours paid leave to each new benefit year. An employer is not required to carry over more than 40 hours paid leave per year.

  1. Are employers required to change the “benefit year”?

          Employers are required to establish a single benefit year (the 12-month period in which employees accrue or are frontloaded paid sick leave) for all employees. Employers who calculate PTO based on the employee’s anniversary date can no longer do so if that PTO is being used for paid sick leave. This requirement also means that employers must work closely with payroll to address accrual dates.

The law also requires that if employers seek to change the benefit year they must provide at least 30 calendar days’ notice to the Commissioner of the NJDOL. Employers are not required to provide notice to the Commissioner of the initial establishment of a benefit year.

  1. What happens to unused sick time at termination?

            Employers are not required to payout for unused sick time at termination unless a company policy or a collective bargaining agreement provides for payout. Employers should update their policies to unambiguously provide that accrued and unused paid sick leave will not be paid out at termination.

  1. The law only exempts construction employees subject to a collective bargaining agreement, public employees who are provided with sick leave, and per diem health care employees. What constitutes a per diem health care employee?

          This is another great example of where the law and proposed regulations contradict. The statute defines “per diem health care employee” as any New Jersey licensed health care professional (or license applicant) employed by a facility licensed by the New Jersey Department of Health or any first aid, rescue, or ambulance squad member employed by a hospital system, who fulfills the following three qualifications: (1) works on an as-needed basis to supplement a health care employee or to replace or substitute for a temporarily absent health care employee; (2) works only when the employee indicates that the employee is available to work, and has no obligation to work when the employee does not indicate availability; and (3) either (a) has the opportunity for full time or part-time employment under that healthcare provider or (b) has waived earned sick leave benefits for alternative benefits or consideration. So, under the law, a per diem health care employee must meet an exceedingly high standard to be exempt. However, the proposed regulations eliminate the three qualifications.

          Whether this departure from the law was intentional or a mere scrivener’s error is unclear and we await the publication of the final regulations. For now, the statute controls.

  1. Does the new law impose additional recordkeeping and compliance requirements?

Yes. Employers must post the NJDOL’s required notice in a conspicuous place, accessible to all employees in each New Jersey workplace. In addition, employers must distribute the notice (1) to all existing employees by November 29, 2018; (2) at the time of hiring; and (3) if the employee requests a copy of the notice. The required notice may be distributed by email. Employers are not required to obtain signed acknowledgments confirming that employees received the notice.  Significantly, employers must distribute the notice in English and if the employee’s primary language is other than English, the employer must also provide the notice in the employee’s primary language.

Employers must also maintain records documenting the hours worked and earned sick leave used by employees. Records must be maintained for 5 years and made available for inspection by the NJDOL. If an employee claims an employer violated the Act, and that employer has failed to maintain adequate records, then the law creates a presumption that the employer failed to provide paid sick leave.

Bottom Line

The answers to the questions above are based on a review of the FAQs and proposed regulations released by New Jersey Department of Labor and Workforce Development (NJDOL). Employers reviewing the draft regulations for guidance may also find that some of the sections contradict the Sick Leave Law. The proposed regulations are not binding and are open for public comment until December 14, 2018.  We will continue to monitor developments and will provide an update once the final regulations are released by the NJDOL.

In the meantime, employers should work closely with counsel to address the specific needs of their workplace.  In addition, employers must adhere to the notice and recordkeeping requirements, and review and revise existing policies, practices and procedures related to calculating employee’s sick leave to ensure compliance with the new law.

For more information please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at  jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777

Isolated ‘Highly Offensive Gender Slur’ Insufficient to Warrant Employee’s Termination

The New Jersey Supreme Court overturned the termination of a state employee who uttered a highly offensive gender slur that was overheard by other employees.  William R. Hendrickson, Jr., a fire safety inspector with the New Jersey Department of Consumer Affairs (“DCA”) was terminated from his employment as a result of the slur, but his termination was reduced to a six-month suspension following a hearing before an Administrative Law Judge (“ALJ”) with the New Jersey Office of Administrative Law.  The Supreme Court ruled that suspension, not termination, was the proper punishment in light of the offense.

Facts

On December 1, 2013, while on an assignment at MetLife Stadium, which was hosting a New York Jets football game, inspectors from DCA’s Division of Fire Safety were tasked with ensuring the stadium complied with applicable safety codes.  Hendrickson and two other inspectors met in the parking lot before beginning their assignments.  Their supervisor was Senior Inspector Margaret Knight, who was not present with the three men in the parking lot.

While in the parking lot, Hendrickson learned that Senior Inspector Knight assigned him to inspect the pyrotechnics display (fireworks) which were on the roof of MetLife Stadium.  After being informed of his assignment, the two other inspectors overheard Hendrickson made an obscene remark about Senior Inspector Knight, calling her the “c-word.”  Both inspectors were offended by Hendrickson’s remark and reported the incident.  At the hearing, Hendrickson provided a different account of his reaction to the assignment, stating that he walked away and “muttered” to himself that he hoped Senior Inspector Knight “gets a disease.”  Hendrickson testified that he said a few things he was not proud of but claimed to have no recollection of using the offensive language.

After learning of Hendrickson’s outburst, Senior Inspector Knight announced to a number of inspectors, including Hendrickson, that if anyone had any issues with her, to respect her position and come to her directly to discuss and resolve the issue.  Hendrickson walked away without talking to Senior Inspector Knight and completed his assigned task without incident.

ALJ and Appellate Decisions

After the hearing, the ALJ issued a written decision holding that Hendrickson uttered a gender slur in the workplace and violated the State’s policy prohibiting gender discrimination and engaged in conduct unbecoming a public employee.  While the ALJ rejected Hendrickson’s account as not credible, the ALJ found that termination was too harsh a remedy given Hendrickson’s lack of disciplinary history in the 15-months prior and 9-months after the incident.  The ALJ ordered Hendrickson be suspended for 6-months.

The Department of Consumer Affairs appealed the ALJ’s decision to the Appellate Division.  The Appellate Division, substituting their judgment for that of the ALJ, reinstated the penalty of removal and Hendrickson thereafter appealed to the New Jersey Supreme Court.

Supreme Court Decision

The Supreme Court overturned the Appellate Division’s decision and reinstated Hendrickson’s 6-month suspension imposed by the ALJ.  The Supreme Court determined the proper standard of review was to assess whether the sanction imposed by the ALJ was “so disproportionate to the offense, in light of all circumstances, as to be shocking to one’s sense of fairness.”

While acknowledging that Hendrickson’s use of a highly offensive gender slur in a public place which was overheard by co-workers must be firmly condemned, the Supreme Court concluded that the ALJ’s decision to impose a 6-month suspension was not shocking to one’s sense of fairness.  In making this determination, the Supreme Court found the ALJ considered:  (1) Hendrickson’s outburst to be an isolated incident; (2) the incident was mitigated by Hendrickson’s unblemished disciplinary record prior to and after the incident; and (3) Hendrickson was ultimately redeemable.  As the Supreme Court stated: “A belittling gender insult uttered in the workplace by a state employee is a violation of New Jersey’s policy against discrimination and Hendrickson’s conduct was unbecoming a public employee.” Thus, the Supreme Court deferred to the ALJ’s conclusions and reinstated Hendrickson’s 6-month suspension.

Bottom Line

Employers have a responsibility to investigate complaints employees raise about harassment and discrimination in the workplace.  If the investigation concludes that an employee has engaged in the conduct complained of, often the employer is faced with a choice of how to properly discipline the employee.  In this case, while the Supreme Court did not does not excuse Hendrickson’s conduct, it found that the ultimate decision by the employer to terminate the employee was too harsh in light of the circumstances. While termination can always be considered, an employer must take into account, and properly document, any mitigating factors that apply in imposing discipline lesser than termination.

For more information please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at  jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

New York State Releases Final Sexual Harassment Prevention Materials & Postpones Training Deadline to October 9, 2019

On October 1, 2018, New York State released final versions of a sexual harassment policy, a complaint form and training materials, along with guidance materials for employers, to assist employers in complying with the new set of laws combating workplace sexual harassment.  By way of background, in April of this year, Governor Cuomo signed legislation imposing requirements on New York State employers to adopt a sexual harassment prevention policy, complaint procedure and training program.  The State released, in draft form, a model policy, model complaint form and model training program in August of this year, followed by a period of public comment that ended on September 12, 2018.  Perhaps the most notable change to result from the public comment period was that the statutory deadline to train employees, which was initially October 9, 2018, was extended one year to October 9, 2019.  Note, however, that this does not change the October 9, 2018 deadline for adopting a sexual harassment policy and mounting posters.

The final materials released by New York State are as follows:

Sexual Harassment Prevention Policy Materials

  • Model Sexual Harassment Prevention Policy – By October 9, 2018, all New York State employers must adopt a policy that meets or exceeds this model policy’s standards and distribute it in writing to all employees.
  • Minimum Standards for Sexual Harassment Prevention Policies – For employers who wish to update their existing sexual harassment prevention policy instead of adopt the model policy, the State has issued minimum standards for that policy to uphold.
  • Sexual Harassment Prevention Poster – By October 9, 2018, all New York State employers must mount this poster in conspicuous places around the workplace for all employees to see.

Sexual Harassment Complaint Form

  • Model Complaint Form for Reporting Sexual Harassment – The sexual harassment policy must include a complaint form that, collects at least all of the information sought on the State’s model complaint form, for employees to report sexual harassment.

Sexual Harassment Training Program Materials – All New York State employers must implement an annual, interactive sexual harassment training program that meets or exceeds the State’s model program, and all existing employees must be trained under that program by October 9, 2019.  The materials released by the State include:

  • Model Sexual Harassment Prevention Training Script – Although the training must be interactive, it need not be live. The State established the script document for employers to use in creating the narrative of the interactive training.
  • Model Sexual Harassment Prevention Training Slides – The State has released model presentation slides to incorporate into sexual harassment training.
  • Model Sexual Harassment Prevention Training Case Studies – The new laws require that the training include examples of conduct that would constitute unlawful sexual harassment, which is provided by the content on the case studies document.
  • Minimum Standards for Sexual Harassment Prevention Training – For employers who have an existing sexual harassment training program, the State has issued minimum standards for employers to use to make sure their programs comply with the law.

The State also issued a Sexual Harassment Prevention Toolkit and set of Frequently Asked Questions as guidance materials for employers.

For more information on what your company can do to ensure compliance with New York sexual harassment laws, please contact Harris S. Freier, Esq. of the firm’s Employment Litigation Practice Group, at hfreier@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

PUMA Provision Provides Powerful Position for Prospective Employee in Connecticut Medical Marijuana Case

The magical mystery tour of medical marijuana-related employment litigation continued earlier this month with a decision out of the U.S. District Court for the District of Connecticut in the case of Noffsinger v. SSC Niantic Operating Co. LLC.  In Noffsinger, District Court Judge Jeffrey Alker Meyer has issued two notable opinions since August 2017 – “Noffsinger I” on August 8, 2017 and “Noffsinger II” on September 5, 2018 – on the question of whether an employer violated the anti-discrimination provision of Connecticut’s Palliative Use of Marijuana Act (“PUMA”) when it rescinded a prospective employee’s job offer because she had tested positive for medically prescribed cannabis.  The facts of Noffsinger should sound familiar to those acquainted with a recent article on this blog, “Federal Judge Clears the Haze for New Jersey Employers in the Weeds with Medical Marijuana Users,” regarding the decisions in Cotto v. Ardagh Glass Packing, Inc., et al. (NJ) and Barbuto v. Advantage Sales and Marketing, LLC (MA).  The outcome of Noffsigner, however, proves to be quite unique and reinforces the notion that this is an emerging and unsettled area of the law.

Like many states around the country, Connecticut permits the use of medical marijuana for “qualifying patients” with certain debilitating conditions and affords these patients an exemption from criminal prosecution for such prescribed use.  Connecticut is fairly unique, however, in that PUMA also includes a provision that explicitly prohibits discrimination against qualifying patients, stating in relevant part that “[n]o employer may refuse to hire a person . . . solely on the basis of such person’s . . . status as a qualifying patient . . . .” Conn. Gen. Stat. § 21a-408p(b)(3).   PUMA goes on to state that this provision does not operate to restrict an employer’s ability to prohibit the use of “intoxicating substances” or to discipline an employee for being under the influence of the same during work hours.

In Noffsinger, the plaintiff had accepted a job offer for a director of recreational therapy position at Bride Brook, a nursing facility in Niantic, Connecticut.  During the pre-employment process, the plaintiff told Bride Brook’s administrator that she took prescription marijuana as a registered “qualifying patient” under Connecticut’s PUMA to treat her PTSD.  Pursuant to her prescription, the plaintiff took one capsule of a synthetic form of cannabis each night and had done so while employed as a recreational therapist at her previous employer.  However, following a routine pre-employment drug screening, Bride Brook informed the plaintiff that her offer had been rescinded due to a positive drug test result for cannabis.  Three weeks later, plaintiff filed a complaint in which she asserted that Bride Brook, in rescinding her job offer due to the results of her drug test, had violated PUMA’s anti-discrimination provision.  Therefore, the issue raised in Noffsinger is what role, if any, PUMA’s anti-discrimination provision has for individuals who have suffered adverse employment decisions because of their use of medical marijuana outside of the work place.

As noted above, Judge Meyer addressed this issue in two separate opinions.  The first opinion, Noffsinger I, involved two important questions: 1) does federal law preempt PUMA’s anti-discrimination provision, and, if not, 2) does this provision provide a basis for an individual to sustain a lawsuit against an employer for a claim of discrimination.  Taking on the first question, Judge Meyer found that neither the federal Controlled Substances Act (“CSA”) nor the Americans with Disabilities Act (“ADA”) preempt PUMA’s anti-discrimination provision.  The judge found that the CSA does not make it illegal to employ a marijuana user and the ADA does not preclude a state from regulating employers who discriminate against employees who engage in the medicinal use of drugs in compliance with state law.  Turning to the second question, Judge Meyer held that the anti-discrimination provision of PUMA does indeed provide a basis for individuals to sue an employer for a claim of discrimination.  In effect, Noffsinger I cleared the way for the plaintiff to continue her lawsuit against Bride Brook, with the question remaining whether Bride Brook did indeed discriminate against her in violation of PUMA.

This remaining question was resolved in Noffsinger II with Judge Meyer holding that Bride Brook’s conduct in rescinding the plaintiff’s job offer did indeed constitute a violation of PUMA’s non-discrimination provision.  Specifically, the judge found that PUMA protects a qualifying patient for the use of medical marijuana outside working hours and in the absence of any influence during working hours.  In light of this, Bride Brook’s conduct was contrary to the plaintiff’s right not to be the subject of discrimination because of her status as a qualifying patient under PUMA.

Casual onlookers may reasonably wonder what sort of magic pill allowed for the plaintiff to prevail in Noffsinger, while other courts have dismissed employment discrimination complaints involving adverse actions against qualifying medical marijuana patients, as was the case in Cotto (NJ).  A key factor that makes the outcome in Noffsinger distinguishable from Cotto, or even from Barbuto (MA), is the text of Connecticut’s PUMA itself.  That PUMA explicitly states that employers shall not make adverse employment decisions against individuals solely based on their status as qualifying patients, this is a textual commitment to non-discrimination that is notably absent from many other state medical marijuana statutes, such as New Jersey’s Compassionate Use Medical Marijuana Act (“NJCUMMA”).  Likewise, at the time that the complaint was filed in Barbuto, the medical marijuana statute in Massachusetts also lacked an explicit non-discrimination provision.

Where does this leave the state of the law for employers in New Jersey?  In a word, hazy.  The diverse outcomes of Noffsinger, Cotto, and Barbuto, in addition to the proposals that are currently being debated in the New Jersey Legislature make it clear that this is an emerging and unsettled area of the law.  Employers should be careful to have state-specific drug testing policies.  Furthermore, employers need to proceed very carefully before taking adverse action against medical marijuana users.

To cope with these clouds of uncertainty, any employers dealing with issues involving medical marijuana should consult with their counsel. For more information, please contact Harris S. Freier, Esq. of the firm’s Employment Litigation Practice Group, at hfreier@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

Religion at Work: NJ Appellate Court Reinstates Religious Harassment Lawsuit Over Shaving Mandate

The New Jersey Appellate Division has ruled that a lawsuit against the New Jersey Department of Corrections (NJDOC) can proceed for failure to accommodate a trainee’s religious practice.

Background Facts

In July 2016, Marven Roseus, a member of the Israel United in Christ faith, applied to become a NJDOC corrections officer. While attending an orientation meeting, Roseus informed lieutenants that his religion prohibits him from shaving his head or face. Roseus submitted a religious accommodation request which included a statement from an elder in his church explaining that his religion requires that he not shave either his head or face.

After submitting his request, Roseus arrived for his first day of training, and was told that he was not “properly shaven.”  Even though Roseus explained that his request for a religious accommodation, Roseus was written up and dismissed from training.

On January 9, 2017, Roseus filed a complaint against the State of New Jersey and the NJDOC alleging discriminatory practices and a failure to accommodate a sincerely held religious belief, in violation of the New Jersey Law Against Discrimination (NJLAD) which prohibits employers from imposing a condition on employees that “would require a person to violate or forego a sincerely held religious practice or observance” unless, “after engaging in bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” N.J.S.A. 10:5-12(q)(1).

The State and NJDOC moved to dismiss Roseus’ complaint, and the trial court dismissed the case on June 30, 2017.

Appellate Court’s Decision

The Appellate Division ruled that Roseus’ complaint should be reinstated finding that there was no evidence the NJDOC acted in “a bona fide effort” or that it is “unable to reasonably accommodate” his religious practice without a “undue hardship.” An “undue hardship”, as defined by the NJLAD, must be one requiring “unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement.” N.J.S.A. 10:5-12(q)(3)(a).

In its decision, the Appellate Division distinguished a 2008 ruling from the U.S. Court of Appeals for the Third Circuit in Valdes v. New Jersey. In Valdes, an applicant sought to become a corrections officer, and sought an accommodation to not shave his beard based upon his religious beliefs. This request was initially denied, but the NJDOC eventually granted an accommodation and allowed the applicant to retain his facial hair so long as it was not longer than one-eighth of an inch. When the applicant did not shave his beard to the agreed upon length, he was terminated. The Appellate Division points out that although seemingly similar to the facts at hand, Valdes was distinguishable in a number of ways, including, most notably, that an accommodation was offered in Valdes, whereas Roseus was offered no such accommodation.

The Appellate Division also noted that because Roseus sufficiently alleged that the NJDOC has previously granted accommodations to its grooming policy, Roseus was entitled to discovery to explore whether there was a bona fide effort made to accommodate his religious beliefs. Moreover, the State and NJDOC did not explain the reasons for the grooming policy, nor did they demonstrate they attempted to accommodate Roseus.

Bottom Line

This case serves as a reminder that employers must engage in the interactive process in order to determine whether or not an employee’s sincerely held religious belief requires an accommodation in the workplace.  Accommodation requests often relate to change in work schedules, exceptions to dress and grooming policies, or time for religious expression or practice while at work.  In many cases, employers who face costly litigation are those where supervisors refuse an accommodation request without exploring other ways to accommodate the employee. Employers should also take pro-active steps to ensure they have the following:

  • A compliant Anti-Harassment Policy that covers religion and creed.
  • An accommodation policy that covers religious beliefs, practices or observances.
  • Train Managers and Supervisors on how to document and respond to requests for a religious accommodation and address complaints about religious harassment.

For more information on what your company can do to ensure compliance with religious accommodations in the workplace, please contact  John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

New York State Releases Draft Sexual Harassment Prevention Policy & Model Training Program

New York State has released a draft Sexual Harassment Prevention Policy and model training program for employers and is seeking comments from the public by September 12, 2018. The model policy and training policy is in follow-up to the legislation passed earlier this year to reduce the prevalence of discrimination and harassment in the workplace.  After the period for public comment, revisions will be considered and final documents will be ultimately released.

The model Sexual Harassment Prevention Policy, available on the State’s website, requires that by October 9, 2018, employers doing business in New York State adopt a policy that meets or exceeds the model policy’s standards and distribute that policy in writing to all of its employees.  Employers who do not adopt the model policy may establish their own policy, but it must meet a set of “minimum standards,” which New York State also recently released.  The new law also requires that an employer’s sexual harassment policy include a complaint form for employees to report alleged incidents of sexual harassment.  The State has also released its model complaint form, linked here. Employers must also:

  • Develop an investigation procedure for complaints that guarantees due process;
  • Provide information about applicable federal, state & local laws on sexual harassment in the workplace, including remedies available to aggrieved employees;
  • Provide examples of behavior that would constitute unlawful sexual harassment.
  • State that sexual harassment is considered a form of employee misconduct and that employees or managers who take part in or knowingly allow such harassment will be disciplined; and
  • Clearly indicate that any form of retaliation is prohibited against employees who either complain about sexual harassment or assist in an investigation.

New York State also released model training program, linked here. Interactive training must be given  annually, starting on October 9, 2018.  Employers may also adopt the model training or may use it as a basis to establish its own. Employers must, however, ensure that their training complies with State-issued minimum standards, which can be accessed here.

Starting January 1, 2019, companies bidding for a state contract will be required to accompany their bids with a certification stating that they have a written policy and training program that meets or exceeds the models.

As we have previously advised, there are other sweeping changes to workplace sexual harassment laws that New York State and New York City employers must comply with, which are summarized as follows:

New York State

  • Employers Cannot Mandate Arbitration of Sexual Harassment Claims – Employers can no longer mandate that employees arbitrate sexual harassment claims unless that prohibition is inconsistent with (a) federal law or (b) a collective bargaining agreement. This provision is sure to be challenged based on preemption under the Federal Arbitration Act, however, unless or until a court rules otherwise, the law was effective as of July 11, 2018.
  • Most Nondisclosure Agreements are Banned from Sexual Harassment Settlements Unless Sufficient Consent and Notice – Employers who settle sexual harassment claims can no longer include provisions in their settlement agreements preventing the disclosure of facts underlying the claims, unless the complaining party consents to it. He/she must be given 21 days to consider the nondisclosure language and 7 days thereafter to revoke it.  He/she cannot waive this right.  This law took effect on July 11, 2018.
  • Employers Are Now Liable to Non-Employees for Sexual Harassment – Employers will be held liable for sexual harassment committed against contractors, subcontractors, vendors, and others providing services under a contract, where it can be shown that the employer (a) knew or should have known that such non-employee was being harassed but did nothing about it, and (b) has sufficient control and “legal responsibility” with respect to the conduct of the harasser. This law took effect immediately.
  • Government Employees Must Refund any Taxpayer-Funded Payouts for Sexual Harassment Awards – Effective immediately, employees of the state, political subdivisions or other public entities (including elected officials), who have been found personally liable for sexual harassment in the workplace, must refund to the state/other public entity any payments it made to the plaintiff on that employee’s behalf, within 90 days.

New York City

  • NYC’s Anti-Harassment Applies to All Employers – The NYCHRL prohibiting harassment and discrimination in the workplace now applies to all employers, regardless of size.
  • Sexual Harassment Claims are Subject to a Three-Year Statute of Limitations – The statute of limitations to bring a claim under the NYCHRL has been extended from 1 year to 3 years for claims of gender-based harassment.
  • NYC Employers Must Provide Annual Sexual Harassment Training Effective April 1, 2019, New York City employers with 15 or more employees will be required to provide all employees annual sexual harassment training that meets or exceeds the model program’s standards. New employees must receive the training within 90 days of hire.  The program must be interactive, but it need not be live.  Employers will be required to maintain records of trainings, including acknowledgement forms.  We are still awaiting the Commission’s sexual harassment training module.
  • NYC Employers Must Hang a Poster & Distribute a Hand-Out Regarding Sexual Harassment – By September 6, 2018, all employers doing business in New York City must conspicuously post and distribute a poster created by the New York City Commission on Human Rights to all employees, which informs them of their protections from sexual harassment under the New York City Human Rights Law, provides phone numbers to report harassment, and provides information on how to file a Complaint with the Commission and a Charge of Discrimination the U.S. Equal Employment Opportunity Commission. The poster is available on the Commission’s website and it must be at least 8.5 by 14 inches in size, using at least 12-point font, and posted in both English and Spanish. The Commission, however, has only released the English version to date. The Commission has also released a Fact Sheet setting forth employees’ rights regarding workplace sexual harassment, which employers must distribute to all employees at the time of hire.  The Fact Sheet is also available on the Commission’s website and linked here. The information sheet may either be distributed as a separate document or incorporated into the employer’s Employee Handbook no later than September 6, 2018.

Employer To-Do List

We will continue to monitor and update the new developments in both New York State and New York City.  The following is a non-exhaustive list of action items that New York State and New York City employers are strongly encouraged to implement, in consultation with legal counsel:

  • Review and revise your existing policies, practices, procedures, and training programs, as well as employment contracts, severance agreements, and other contracts to ensure compliance with these new state and city laws.
  • Even if your existing harassment policies comply with the new laws, best practice suggests that you redistribute them.
  • Now that contractors and other non-employees are protected from sexual harassment, you should consider providing training to them if you have not done so already.
  • Do not blindly adopt the state and/or city’s model policies or training programs. These are designed to provide minimum thresholds that you should adjust and build upon based upon the needs of your company.  However, make sure your policies and training programs comply with the minimum standards released by the State.
  • If you have employees in New York City, post the required sexual harassment poster and implement a system for distributing the required sexual harassment fact sheet to all employees upon hire or incorporate it into your Employee Handbook, no later than September 6, 2018.

For more information on what your company can do to ensure compliance with New York or New York City sexual harassment laws, please contact Harris S. Freier, Esq. of the firm’s Employment Litigation Practice Group, at hfreier@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

New York Legislature Amends Paid Family Leave Act

On June 20, 2018, the New York legislature overwhelmingly passed a bill to give employees up to 12 weeks of partially paid bereavement leave. The bill will still require the approval of Governor Andrew Cuomo. The bill expands the Paid Family Leave Act (the “Act”), which went into effect on January 1, 2018. The Act already provided employees up to 12 weeks of leave paid at a percentage of their salaries for situations including child birth or adoption, a qualifying exigency arising out of a family member’s military service, or the need to care for a sick relative. The Act covers the care of a spouse or domestic partner, child, parent, parent-in-law, grandparent, or grandchild, by blood or marriage. The recent amendment was passed in an effort to explicitly clarify the legislative intent that bereavement leave for the death of such relative would be covered by the Act as well.

The original Act guarantees an employee the same or comparable job when they return from leave, and bars employers from cutting off health insurance. While employees with planned births or adoptions are required to provide 30 days’ notice under the Act, the bereavement amendment will permit employees to give notice “as soon as practicable.” Employees eligible for leave under this amendment will be required to provide a death certificate.

While some employers are concerned that the bill will impose hardship on small businesses, the New York State Assembly justifies the amendment because “[g]rief-related losses cost U.S. companies as much as $75 billion annually.” As such, the legislature purports that the amendment will result in “greater employee loyalty, better outcomes, better quality of life for that person, and an overall healthier workforce that has been given the necessary time to mourn their loss.” The bill is sponsored by State Senator Rich Funke, who suffered the sudden loss of his adult son. If the bill is signed by Governor Cuomo, New York will offer the most generous bereavement leave benefits in the country.

For more information on what your company can do to ensure compliance with New York or New York City employee benefits laws, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

Federal Judge Clears the Haze for New Jersey Employers in the Weeds with Medical Marijuana Users

States across the country, including New Jersey, continue to legalize medical marijuana, but it remains an illegal substance under federal law, and employers’ confusion continues to bud.  The complication that employers have – especially in states such as New Jersey with expansive disability protections under the New Jersey Law Against Discrimination (“NJLAD”) – is that any employee who is using marijuana for a medicinal purpose under the New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”), likely would be considered to have a disability and thus be protected under the NJLAD.

One way an employer can be considered under NJLAD to have discriminated against a disabled individual is by failing to offer him/her a reasonable accommodation.  While the NJCUMMA explicitly states that a reasonable accommodation would not include allowing an employee to use marijuana at work, the statute is not so blunt on the topic of workplace drug testing.  Does NJLAD require that employers accommodate a medical marijuana user by waiving the requirement that he/she pass a drug test for federally-prohibited narcotics?  Issuing a dose of relief to employers who feared that NJCUMMA would set their drug test requirements ablaze, a New Jersey federal judge recently ruled that the answer is no.

In Cotto v. Ardagh Glass Packing, Inc., et al., the plaintiff worked for about 5 years as a forklift operator for a glass packaging company.  In 2016, he injured his head on the job and was placed on light duty work.  He was subsequently asked to take a drug test before returning to work as a condition of continued employment.  He informed his employer that he would test positive for medical marijuana, which he was legally prescribed to treat a neck and back injury that occurred in 2007.  Seeking an accommodation, the plaintiff requested that his employer waive the requirement that he pass a drug test for marijuana.  Apparently, the plaintiff had told the employer upon hire that he was prescribed medical marijuana.  After his employer refused to waive the requirement that he pass a drug test before returning to work, he sued for disability discrimination based on a failure to accommodate.

Judge Robert B. Kugler of the U.S. District Court for the District of New Jersey held that the NJCUMMA does not require an employer to waive its requirement that employees pass a drug test for illegal drugs.  Addressing the issue as one of first impression in New Jersey, Judge Kugler relied on the current federal prohibition on marijuana.  He also relied on the express language of the NJCUMMA, which provides that legal medical marijuana users shall not be subject to criminal or civil penalties related to their use of the drug, but expressly excludes employers from its scope, as follows: “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.  Judge Kugler also observed that most courts outside New Jersey have concluded that, unless their state statute’s language explicitly provides otherwise, the decriminalization of medical marijuana does not shield employees from adverse employment actions related to their use of the drug.

Last year, in Barbuto v. Advantage Sales and Marketing, LLC, the Supreme Court of Massachusetts was faced with a similar set of facts: an employee suffering from Crohn’s disease who was legally prescribed medical marijuana under Massachusetts’ medical marijuana statute, sought a waiver of her employer’s policy barring from employment those who test positive for marijuana.  Like the NJCUMMA, Massachusetts’ statute also explicitly states that employers are not required to accommodate any on-site medical marijuana use.  The employer in Barbuto argued that because the only accommodation the employee sought – her continued use of medical marijuana – is a federal crime, it was facially unreasonable.  The Barbuto Court disagreed, noting that such an argument respects federal law alone and ignores Massachusetts voters’ and legislators’ recognition of marijuana as an acceptable method to treat debilitating medical conditions.  The Court further held that, even if an accommodation of continued use of medical marijuana were facially unreasonable, the employer still had a duty to engage in the interactive process and explore with the employee whether there was an alternative accommodation that would allow her to work, such as allowing her to use the drug off-site during non-working hours.

Cotto concerned the reasonable accommodation request of waiving a drug test while Barbuto involved the reasonable accommodation request of using marijuana off-site during non-work hours.   The parties and judge in Cotto seem to have gone out of their way not to cite or distinguish Barbuto, so while New Jersey employers now have clarity about drug testing, they remain dazed and confused as to whether allowing an employee to use medicinal marijuana off-site during non-work hours would be a legitimate reasonable accommodation.

In addition, employers should understand that their knowledge that an employee uses the drug almost invariably imputes knowledge that an employee suffers from a protected disability.  The Cotto case concerned employer conduct resulting from an employee’s treatment, not the employee’s disability, as the plaintiff admitted that his employer knew about his disability for years and never discriminated against him until he was asked to take the drug test.  However, in the absence of such favorable facts, employers should take caution not to make employment decisions based solely on their knowledge that an employee is a medical marijuana user.

For more information about the interplay between the decriminalization of medical marijuana and disability discrimination law, please contact Harris S. Freier, Esq. of the firm’s Employment Litigation Practice Group, at hfreier@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

New York City Issues Mandatory Sexual Harassment Poster & Fact Sheet

The New York City Commission on Human Rights (“the Commission”) has issued its mandatory poster and information sheet for distribution to  employees pursuant to the recently enacted Stop Sexual Harassment in New York City Act.  By September 6, 2018, all employers doing business in New York City must conspicuously post and distribute the notice to all employees. The poster, available on the Commission’s website, must be at least 8.5 by 14 inches in size, using at least 12-point font, and posted in both English and Spanish.  The Commission, however, has only released the English version to date.

The Commission has also released a Fact Sheet setting forth employees’ rights regarding workplace sexual harassment, which employers must distribute to all employees at the time of hire.  The Fact Sheet, also available on the Commission’s website, can be accessed by clicking here. The information sheet may either be distributed as a separate document or incorporated into the employer’s Employee Handbook no later than September 6, 2018.

The poster and Fact Sheet advise employees of the protections of the New York City Human Rights Law (“NYCHRL”), lists examples of sexual harassment and advises that retaliation against employees reporting sexual harassment is illegal.  The poster also provides the Commission’s phone number for employees to report sexual harassment in the workplace and provides information on how to file a Complaint with the Commission and a Charge of Discrimination the U.S. Equal Employment Opportunity Commission.

As we have previously advised, New York State and New York City employers must comply with recent sweeping changes to the laws regarding sexual harassment, summarized as follows:

New York State

  • Employers Cannot Mandate Arbitration of Sexual Harassment Claims – Employers can no longer mandate that employees arbitrate sexual harassment claims unless that prohibition is inconsistent with (a) federal law or (b) a collective bargaining agreement. This provision is sure to be challenged based on preemption under the Federal Arbitration Act, however, unless or until a court rules otherwise, the law was effective as of July 11, 2018.
  • Most Nondisclosure Agreements are Banned from Sexual Harassment Settlements Unless Sufficient Consent and Notice – Employers who settle sexual harassment claims can no longer include provisions in their settlement agreements preventing the disclosure of facts underlying the claims, unless the complaining party consents to it. He/she must be given 21 days to consider the nondisclosure language and 7 days thereafter to revoke it.  He/she cannot waive this right.  This law took effect on July 11, 2018.
  • Employers Must Adopt a Policy and Provide Annual Training on Sexual Harassment – The state will establish a model sexual harassment policy and training program that will address specific topics, including information related to what laws workplace sexual harassment violates, remedies available to victims, complaint and investigation procedures, and the additional obligations imposed on supervisory employees to address sexual harassment. Effective October 9, 2018, employers will be required to adopt a policy that meets or exceeds the model policy’s standards, distribute that policy in writing to all of its employees, and implement an annual training program that meets or exceeds the model training program’s standards.  Effective January 1, 2019, companies bidding for a state contract will be required to accompany their bids with a certification stating that they have a written policy and training program that meets or exceeds the models.
  • Employers Are Now Liable to Non-Employees for Sexual Harassment – Employers will be held liable for sexual harassment committed against contractors, subcontractors, vendors, and others providing services under a contract, where it can be shown that the employer (a) knew or should have known that such non-employee was being harassed but did nothing about it, and (b) has sufficient control and “legal responsibility” with respect to the conduct of the harasser. This law took effect immediately.
  • Government Employees Must Refund any Taxpayer-Funded Payouts for Sexual Harassment Awards – Effective immediately, employees of the state, political subdivisions or other public entities (including elected officials), who have been found personally liable for sexual harassment in the workplace, must refund to the state/other public entity any payments it made to the plaintiff on that employee’s behalf, within 90 days.

New York City

  • NYC’s Anti-Harassment Applies to All Employers – The NYCHRL prohibiting harassment and discrimination in the workplace now applies to all employers, regardless of size.
  • Sexual Harassment Claims are Subject to a Three-Year Statute of Limitations – The statute of limitations to bring a claim under the NYCHRL has been extended from 1 year to 3 years for claims of gender-based harassment.
  • NYC Employers Must Provide Annual Sexual Harassment Training Effective April 1, 2019, New York City employers with 15 or more employees will be required to provide all employees annual sexual harassment training that meets or exceeds the model program’s standards. New employees must receive the training within 90 days of hire.  The program must be interactive, but it need not be live.  Employers will be required to maintain records of trainings, including acknowledgement forms.  We are still awaiting the Commission’s sexual harassment training module.

Employer To-Do List

We will continue to monitor and update the new developments in both New York State and New York City.  The following is a non-exhaustive list of action items that New York State and New York City employers are strongly encouraged to implement, in consultation with legal counsel:

  • Review and revise your existing policies, practices, procedures, and training programs, as well as employment contracts, severance agreements, and other contracts to ensure compliance with these new state and city laws.
  • Even if your existing harassment policies comply with the new laws, best practice suggests that you redistribute them.
  • Now that contractors and other non-employees are protected from sexual harassment, you should consider providing training to them if you have not done so already.
  • Do not blindly adopt the state and/or city’s model policies or training programs. These are designed to provide minimum thresholds that you should adjust and build upon based upon the needs of your company.
  • If you have employees in New York City, post the required sexual harassment poster and implement a system for distributing the required sexual harassment fact sheet to all employees upon hire or incorporate it into your Employee Handbook, no later than September 6, 2018.

For more information on what your company can do to ensure compliance with New York or New York City sexual harassment laws, please contact Harris S. Freier, Esq. of the firm’s Employment Litigation Practice Group, at hfreier@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

Be Reasonable: Employees May Not be Able to Request a “Few Weeks or a Few Months” of Leave as an Accommodation Under the ADA

The Third Circuit Court of Appeals recently determined that a request for indefinite leave is not a reasonable accommodation under the Americans with Disabilities Act (“ADA”).

Facts

Stanley Kieffer worked for CPR Restoration & Cleaning Service, LLC (“CPR LLC”) in a supervisory role, until he injured his shoulder in August 2013. Kieffer applied for, and received worker’s compensation and also requested, as a reasonable accommodation, a driver because he could not drive on the job with his injured shoulder. This request was denied. Kieffer then requested, and was granted leave beginning in September 2013. Kieffer told his employer that he would return to work on November 13, 2013. When Kieffer unexpectedly returned to work on November 4, 2013, he was subsequently terminated.

Kieffer filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”), and then began to work for CPR Restoration, Inc. (“CPR, Inc.”), which is owned by the same individual as CPR LLC. This new position required Kieffer to commute from Pennsylvania to Northern New Jersey every day. Due to a disagreement over whether his relocation to New Jersey would be paid for, Kieffer claimed that the decision to not pay for his move amounted to a constructive discharge and retaliation, and he quit the company in June 2014.

District Court’s Decision

Kieffer filed suit in the District Court against both CPR LLC and CPR, Inc., alleging violations of the ADA, the Family Medical Leave Act (“FMLA”), and applicable state law. Finding for CPR LLC and CPR, Inc., the District Court found that the companies were not joint/integrated employers under the FMLA, and that Kieffer was not a “qualified individual” under the ADA because he could not show that he could perform the “essential functions” of his positions with or without reasonable accommodations. The District Court also determined that neither company retaliated against Kieffer under the ADA, FMLA, or applicable state law.

Third Circuit’s Decision

The Third Circuit found that CPR LLC’s denial of a driver was proper because even with such an accommodation, Kieffer could not perform any physical labor, which was an essential function of his job. The Third Circuit reiterated that whether a task is an essential function is generally a fact-intensive inquiry. Factors used to determine whether a function is essential include the 1) employer’s judgment, 2) written job descriptions, 3) time spent on the job performing the function, 4) consequences of not requiring a worker to perform the function, 5) terms of a collective-bargaining agreement, 6) work experience of past employees in the job, and 7) work experience of current employees in similar jobs.

On appeal, Kieffer also argued that the leave of absence he requested would have allowed him to perform his essential functions after he returned from leave. However, there was no evidence that the leave was requested for a definite, rather than an open-ended, period of time. Following other circuits, the Third Circuit found that Kieffer’s request for leave was considered to be indefinite, because testimony showed that his request for leave was “worded loosely as being for a few weeks or a few months.” Upholding the District Court’s decision, the Third Circuit stated, “The basis for such a holding reflects the fact that an accommodation of a short period of definite leave would enable an employee to perform his essential job functions in the near future … The request for leave here specified neither a leave for a definite period, nor a return in the future.”

The Third Circuit also found that Kieffer was not retaliated against for requesting a leave of absence two months before his termination. The Third Circuit noted that it had previously ruled that over two months between protected activity and adverse employment activity—without more—is insufficient to prove that his request for a break “was the likely reason for h[is] termination.”

Finally, the Third Circuit found that even assuming that CPR Inc. reneged on its promise to relocate Kieffer, there was no evidence to suggest any hostility or antagonism between the filing of his EEOC claim and the denial of moving costs. Thus, Kieffer’s constructive discharge claim was also dismissed.

Bottom Line

Proceed with caution when employees request leave under the ADA. Vague requests for unspecified amounts of leave are not “reasonable accommodations” under the ADA and employers must work with employees to guarantee that the employee’s request for leave is for a definite amount of time so that the employee can recover and perform the essential functions of their job. Be mindful, however, that the EEOC may consider the request a request of up to “a few months” of leave, as a leave for a definite amount rather than an open-ended (i.e. “indefinite”) leave.

For more information about ADA accommodations and requests for leave, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.