What Does New Jersey’s Lifting of the Stay-At-Home Order Mean for Office-Based Workers? … Not Much.

On June 1, 2020, New Jersey Governor Phil Murphy announced that the state is on track and expected to enter Stage/Phase 2 of the Restart and Recovery Plan on June 15, 2020, which will permit nonessential retail businesses to reopen to the public and permit in-person outdoor dining, so long as required social distancing and other mitigation protocols are followed. Personal care service providers, such as hair salons, nail salons and barber shops are scheduled to reopen on June 22, 2020.

On June 9, 2020, Governor Murphy signed Executive Order No. 153, lifting the stay-at-home order that had been in place since March 21, 2020. Executive Order No. 153 states, among other things, “Paragraph 2 of Executive Order No. 107 (2020), which requires New Jersey residents to remain home or at their place of residence with limited exceptions, is hereby rescinded.”

Continue reading “What Does New Jersey’s Lifting of the Stay-At-Home Order Mean for Office-Based Workers? … Not Much.”

Legal Considerations for Reopening the Workplace

On March 18, 2020, Governor Andrew Cuomo enacted Executive Order 202.6, temporarily closing all nonessential businesses in response to the coronavirus outbreak. In late April, Governor Cuomo issued guidance announcing a phased approach to reopening businesses that requires regions across New York State to satisfy seven criteria involving a drop in the infection rate, increased capacity in healthcare systems, increased ability to administer diagnostic tests and isolate new cases, and a capacity to implement contact tracing. With eight out of the state’s ten regions satisfying Governor Cuomo’s criteria, municipalities and businesses around the state prepare to return to work.

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Question & Answer Employer Guide: Return to Work in the Time of COVID-19

As government authorities look to implement business reopening measures, employers are now planning to move employees back into the workplace as state and local stay-at-home orders expire and other COVID-19 business restrictions expire or are modified. What are the various considerations employers must keep in mind when reopening their physical work locations?

This Question and Answer Guide describes a number of COVID-19 employment and return-to-work considerations. Because the COVID-19 pandemic is a fluid situation and highly dependent on jurisdiction- and sector-specific considerations, we anticipate that additional guidance will be coming from the federal, state and local governments as plans to allow businesses to open are developed in the coming days and weeks.

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Under New OSHA Rules, Employers May Not Conduct Post-Accident Drug Tests Simply as a Matter of Course

A mandatory drug and alcohol test after a workplace injury seems like a no brainer, right? Most companies believe so, which is why mandatory drug and alcohol testing after workplace injuries has become a common policy.  However, new Occupational Health and Safety Administration (“OSHA”) regulations on electronic reporting of workplace injuries cast doubt on the continued legality of such policies.  Specifically, OSHA’s new position is that mandatory post-injury testing deters the reporting of workplace safety incidents by employees and therefore employers who continue to operate under such policies will face penalties and enforcement scrutiny. In light of OSHA’s enforcement position, it is time for your company to review and revise its mandatory post-accident drug and alcohol testing policy.

Effective August 10, 2016,[1] OSHA’s final rules on electronic reporting of workplace injuries require employers to implement “a reasonable procedure” for employees to report workplace injuries, and that procedure cannot deter or discourage employees from reporting a workplace injury. The final rule, which amends OSHA’s regulation on Recording and Reporting Occupational Injuries and Illnesses (29 CFR 1904), requires employers to electronically submit injury and illness data to OSHA that they are already required to keep under OSHA regulations. Even though the content of these submissions depends on the size and industry of the employer, all employers are now required to: 1) inform employees of their right to report work-related injuries and illnesses free from retaliation; 2) clarify that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and 3) incorporate the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

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A Notable Week Indeed – From OSHA to Trade Secrets to ADA Accommodations and Transgender Rights!

By Kelly Petrocelli

It’s been a busy and, let’s say notable, week in the area of employment law. Here’s a quick recap, with more to come in future posts, of what you may have missed if you were focused elsewhere this week.

First, OSHA published a new injury Rule this week. While it does not take effect until January 1, 2017, employers should not wait until then to begin thinking about what changes may be necessary to ensure full compliance in the new year. The rule changes create a new cause of action for employees if they suffer retaliation for reporting a workplace injury, and employers are expected to ensure that policies addressing safety do not discourage employees from reporting such injuries. Large employers will also have some additional reporting requirements to OSHA. And, significantly, and in line with the current administration’s agenda of transparency, OSHA will begin making injury data accessible to the public, after removing any personally identifiable information regarding employees. That’s just a summary, with more to come in a future blog post. Stay tuned.

Second, did you hear that President Obama signed into law the Defend Trade Secret Act of 2016? Yes, that’s right, claims for trade secret misappropriation are not just limited to what the applicable state law provides. The new law creates a federal cause of action for the theft/misappropriation of trade secrets that are “related to a product or service used in, or intended for use in, interstate or foreign commerce.” The law also creates a new mechanism for a court to order the civil seizure of property, ex parte, if an employer can meet certain stringent standards for such an order.

Third, not to be overshadowed by either the President or OSHA, the EEOC published its own resource document this week regarding employer duties to provide leave as a reasonable accommodations in the workplace. While the new resource tracks what the EEOC has been saying for many years (or what we, as employment attorneys, know from tracking EEOC litigation and publications), the new resource delves a little deeper into how employers should be analyzing an employee’s request for leave and may be a helpful resource for employers who may still be under the mistaken impression that simply applying a leave policy (or workplace rule) the same to everyone is acceptable under the ADA (hint: we know that employers must modify policies for individuals with a disability if doing so could be a form of reasonable accommodation). Our mantra of no more “automatic termination” policies can no longer be ignored. This is serious stuff. Lots more to come on this topic.

Fourth, the EEOC was also busy issuing a new fact sheet on bathroom access for transgender employees. The fact sheet is brief, essentially reciting the few decisions issued on the topic, and reiterating for employers that transgender employees must be permitted to use the bathroom that corresponds with their gender identity (not biological sex) and cannot be conditioned on an employee having undergone reassignment surgery. Also, employers beware, providing a separate, single-user bathroom for a transgender employee is a form of discrimination (although you can provide a single-user bathroom for use by all employees). A transgender employee must have equal access to the common bathroom that corresponds with their gender identity, regardless of whether it makes other employees uncomfortable.

These are just a few of the many things that happened this week. Stay tuned for further analysis on these topics and more (including the much-anticipated DOL overtime regulations that could be published as early as next week).