We have gotten a lot of questions about whether employers can require employees to go to work during the Coronavirus pandemic. Like a lot of questions in the law, the answer is that it depends. We know that’s not very reassuring so we are going to try to provide some guidance. This is only general information and not to be used as legal advice or guidance for any specific circumstance. Each circumstance is different and requires its own analysis. If you require more specific information or are having a specific work-related issue with your employer, please call our office at (973) 845-9922 to schedule a consultation. We believe in being responsible in times of crisis and are offering phone consultations at this time.
Probably. Most employees can be required to go to work during the Coronavirus pandemic. But every rule has an exception or two.
Employees with an underlying serious medical condition may not be forced to go to work if they can get a doctor’s note explaining the need for a reasonable accommodation like being able to work from home or having time off from work. That is because the Law Against Discrimination requires employers to provide accommodations to employees with serious medical conditions or disabilities. Employers do not always have to provide the accommodation requested or preferred by the employee such as when the employer can show that the accommodation imposes an undue hardship on the employer. What this all means is these situations are often very fact and case specific and this requires us to analyze the individual facts of each case.
If you can get a physician to provide a letter documenting your need for an accommodation for your depression, anxiety, or other mental health condition, your employer must reasonably accommodate that request. Just because mental illness isn’t something that can be seen like a broken limb or other obvious disability, doesn’t mean it is any less of a disability. For that reason, employers must reasonably accommodate mental health conditions – even those that are triggered or caused by the Coronavirus outbreak.
That also depends. Employees who refuse to work because they have a reasonable good faith belief that the workplace is dangerous may be able to refuse to go to work without any penalty IF (and this is a big “IF” here): (1) they brought the dangerous condition to the employer’s attention and the employer refused or failed to fix it, (2) their belief that a condition at work is dangerous is based on a good faith belief, (3) other reasonable people, in the same circumstances, would also believe that there is a serious danger of death or significant harm, and (4) there is not enough time to remove the danger through enforcement (government) action. If all four of those elements are present, it seems that an employer who took adverse action (retaliated) against an employee who refused to work would risk violating the Occupation Safety and Health Act (OSHA), which requires employers to provide safe and healthful workplaces for their employers.
This one is less clear but if there is an actual quarantine, you probably can’t be required to work unless you are in the medical or public safety fields or other fields deemed necessary. A quarantine, if issued, would likely be invoked to further and/or protect public interest. If an employer were to require nonessential employees to break a quarantine, an argument could be made that the employer would be acting in violation of public policy. Employees who suffer an adverse action (like a firing, demotion, pay cut, reduction in hours, etc.) because they disclose, refuse to participate in, or object to the employer’s insistence on violating the quarantine, those employees may be protected by New Jersey’s whistleblower law, the Conscientious Employee Protection Act.
Again, that depends. As of October 2018, New Jersey employers are required to provide full-time and part-time employees with up to 40 hours of accrued paid time off. As long as you have accrued (and not used) paid time off, you are entitled to use that time for various reasons including caring for your children if their school or care provider closed. Of course, that only provides you with up to 40 hours of paid time off but it’s something.
As discussed above, New Jersey employers must provide full-time and part-time employees with up to 40 hours of accrued paid time off. You must be permitted to take your accrued time off for the diagnosis, care, treatment and/or recovery of your own illness (whether mental or physical). Your employer cannot retaliate against you for asking or seeking time off. That means that your employer cannot threaten, discipline, suspend, or fire you, or take any other action because you exercise your right to take paid time off that you have accrued under the New Jersey Earned Sick Leave Law. Again, that only gives you 40 hours of paid time off but that should give you enough time to find out if you have been exposed to Coronavirus. Once diagnosed, you would be entitled to reasonable accommodations under the law, which may include time off, without the risk of losing your job.
OSHA requires employers to provide workplaces free of hazards likely to cause death or serious physical injury. That means that employers are required to keep diagnosed workers out of the workplace to protect all other employees. It also likely means that employers are required to keep employees out of the workplace who show signs consistent with Coronavirus even if not yet diagnosed.
Not yet but New Jersey lawmakers are working on bills that have widespread bipartisan support and are intended to help workers, businesses, and others in response to the coronavirus outbreak. One of the bills that passed the Assembly on Monday, March 16th, if passed by the Senate and signed by Governor Murphy, will create a new temporary unemployment program for workers who are unable to work because they tested positive for coronavirus, need to care for a sick relative, or need to care for a child whose school or daycare closed. Under this program, and unlike regular unemployment, the payments would equal workers’ regular wages.
Be and Stay Well!