March 23, 2020
On March 21, 2020, New Jersey Governor Phil Murphy signed an Executive Order and other legislation that have significant implications for New Jersey employers.
First, Governor Murphy signed an executive order (Executive Order No. 107) requiring New Jersey residents to remain at their place of residence subject to limited exceptions. The order, which went into effect Saturday, March 21, 2020, at 9:00 p.m., provides:
All non-essential retail businesses must indefinitely close all storefront and/or brick-and-mortar premises and operations. Essential businesses are defined in the Executive Order and include grocery stores, pharmacies, medical supply stores, and gas stations.
All businesses are required to utilize telework or work-from-home arrangements wherever practicable. To the extent business has employees that cannot perform their functions via telework or work-from-home arrangements, the business should make its best efforts to reduce staff on-site to the minimum number necessary to ensure that essential operations can continue. This exception is very limited, and the Executive Order lists the employees that fall into this category as including cashiers or store clerks, construction workers, utility workers, repair workers, warehouse workers, lab researchers, IT maintenance workers, janitorial and custodial staff, and certain administrative staff.
As explained in the FAQs posted by the Governor’s office, all manufacturing, industrial operations, logistics, ports, heavy construction, shipping, food production, food delivery, and other commercial operations may continue operating, but they should limit on-site employees to the minimal number to ensure that essential operations can continue.
Employees reporting to work under the limited exceptions above are permitted to travel to and from their place of business, and employers are encouraged to give each employee a letter indicating that the employee works in an industry permitted to continue operations.
These new restrictions imposed by Executive Order 107 may impact an employer’s ability to maintain all staff. For employers who implement large-scale layoffs, the federal and New Jersey WARN acts may be implicated. Employers are reminded that effective July 19, 2020, an amended and more restrictive New Jersey WARN Act goes into effect. The analysis of whether WARN Act notifications are required is fact-specific and varies dependent on particular circumstances. Should employers have questions regarding these obligations, we recommend they contact counsel.
Anti-Discrimination/Anti-Retaliation Protection Legislation Signed by the Governor
Second, the Governor signed legislation (A.B. 3848) aimed at addressing potential discrimination and retaliation against employees in relation to the COVID-19 pandemic. Under the new law, an employer shall not, during the current public health emergency declared by the Governor concerning COVID-19, terminate or otherwise penalize an employee if the employee requests or takes time off from work based on the written (or electronically transmitted) recommendation of a New Jersey medical professional that the employee take that time off for a specified period of time because the employee has, or is likely to have, an infectious disease, which may infect others at the employee’s workplace. The employer is required to reinstate the employee to employment in the position held when the leave commenced with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment.
If an employer is believed to have violated the above provisions, the employee may either file a complaint with the Commissioner of Labor and Workforce Development or may initiate a court action. If a violation is found by the Commissioner, it will order reinstatement of the employee and fine the employer $2,500 for each violation.
Proposed Temporary Lost Wage Unemployment Program
There is proposed legislation in New Jersey (A-3846, known as the “Temporary Lost Wage Unemployment Program”) which would allow individuals and employers in New Jersey to recoup actual lost wages from work absences due to the COVID-19 pandemic. First, the legislation establishes a fund to compensate workers at their average weekly rate from the past calendar year for the following: (1) the individual’s absence from work due to the need to care for a family member; (2) the individual’s absence from work due to the illness of the individual; (3) the individual’s absence from work due to school or childcare facility being closed; and (4) for such other purposes as determined by the commissioner. To claim benefits for actual lost wages, the employee would have to submit an application to the New Jersey Department of Labor and certify “that the individual does not have fully paid leave available for the individual’s absence.”
In addition, there is a separate program proposed under the legislation for employers. Under this proposed program, employers can seek reimbursement for the specific purpose of paying wages to workers who are ordered under quarantine by a licensed healthcare practitioner as a result of the COVID-19 pandemic.