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Two weeks in September showed how fast changes in labor law can be, from endless litigation related to arbitration clauses to a host of problems raised by the COVID-19 pandemic. Buckle up, it will be a bumpy item.
The New Jersey Supreme Court confirms its preference for arbitration
On September 11, the New Jersey Supreme Court issued another statement confirming a contested arbitration provision. In Flanzman v. Jenny Craig, __ NJ __ (2020), the provision at issue was contained in a document entitled “Arbitration Agreement” which was signed by plaintiff Marilyn Flanzman while she was still employed by the defendant employer. She left the company after a series of working hours cuts, which she believed were motivated by discriminatory animus, and filed a lawsuit under the New Jersey Law Against Discrimination (LAD).
The defendants sought arbitration and the court granted the motion. The Appeals Department, in a published decision at 456 NJ Super. 613 (App. Div. 2018) overturned the legal proceedings and found that failure to identify an arbitration forum was fatal to its enforcement.
The New Jersey Supreme Court overturned the Appeals Division. According to the court, the disputed arbitration provision “did not appoint the arbitrator, did not appoint an arbitration organization to conduct the proceedings, or established a procedure for the parties to select an arbitrator”. Even so, the Supreme Court upheld the provision and ordered the case to be arbitrated.
The court began with the oft-quoted premise that both state and federal law support arbitration under the Federal Arbitration Act (FAA) and the New Jersey Arbitration Act (NJAA). Likewise, both laws provide mechanisms for filling in missing information in an arbitration rule, such as appointing an arbitrator. In particular, the NJAA permits the absence of such information because it “provides a standard procedure for the selection of an arbitrator and generally governs the conduct of arbitration, clearly expressing the legislature’s intention that an arbitration agreement may bind the parties without a specific one to appoint arbitrators or arbitration organizations or to prescribe a procedure for such appointment. “
In upholding the provision, the court took the view that while the provision “contains only a general concept of arbitration”, it clearly describes arbitration as “very different from judicial proceedings”.
At least for the moment, the employees are careful and the employers are happy: a lack of details does not lead to an arbitration clause. The next big battle on the arbitration front will determine whether the amendment to the KOP, which provides that a provision of the employment contract “waiving any substantive or procedural right or remedy related to a right to discrimination, retaliation or harassment, against.” violates public order and unenforceable, “NJSA 10: 5-12.7 (a), will void arbitration clauses after taking effect March 18, 2019, or whether that change, at least with respect to arbitration clauses, will be replaced by the FAA.
The COVID-19 presumption increases employees’ claims for damages
September 14th, Governor Phil Murphy signed Senate Act 2380, which creates a rebuttable presumption that a “key worker” contracting COVID-19 contracted it at work and is therefore covered by employee compensation. The new law defines “essential worker” as an employee who is “considered essential for supporting state or federally declared state-wide emergency and recovery measures. or … is a public or private sector employee who has duties and responsibilities the fulfillment of which is essential to the health, safety and welfare of the public. “
The new law is retroactive to March 9, 2020 when Governor Murphy declared a public health emergency related to COVID-19 through Executive Order 103 and will remain in effect as long as that Executive Order is extended. The bill stipulates that the presumption can only be rebutted by refuting evidence that the employee was not exposed to COVID-19 during the work with predominant evidence.
Predictions: There will be litigation over who is a “material worker” for the purposes of the law and negligence claims will be brought against employers of family members and other third parties who claim they have been infected with COVID-19 by a material worker.
Ministry of Labor revisions related to COVID-19
Effective September 16, the Department of Labor (DOL) revised the vacation provisions under the Families First Coronavirus Response Act (FFCRA). The FFCRA enables employers to exempt certain “health care providers” of employees from the FFCRA vacation allowance. A federal court in New York has rejected what it believed to be an overly broad definition of the term “healthcare provider” and contrasted it with the much narrower definition in the Family and Medical Leave Act (FMLA).
In response, the DOL revised the regulations to get a narrower definition (although not as narrow as that of the FMLA). The revisions make it clear that workers involved in healthcare such as IT, HR, food service, etc. are not exempt from FFCRA vacation entitlements. However, the DOL maintains a definition of the term “health care provider” which, while encompassing the FMLA definition, extends this definition to employees who “provide diagnostic services, prevention services, treatment services or other services that are integrated with and required by them are the provision of patient care and, if not provided, would adversely affect patient care. “These employees are still exempt from FFCRA leave.
While many healthcare workers will continue to be exempt from the FFCRA vacation, employees who support medical providers will benefit from this overhaul.
DOL has also made other clarifications to FFCRA, including: FFCRA leave is only allowed if the employee would otherwise have work; The employee must have the employer’s approval before taking temporary leave under the FFCRA. Workers must provide employers with all the necessary FFCRA leave documentation “as soon as possible”. and clarification that termination of leave does not need to be made prior to paid sick leave and extended family and sick leave leave.
While the need for the FFCRA will hopefully be short-lived, the DOL has shown that it will aggressively monitor implementation of the law and make changes if necessary.
Equal Opportunities Commission issues new guidelines
On September 8, the Equal Employment Opportunity Commission (EEOC) issued new guidelines for the interface between the American With Disabilities Act (ADA) and COVID-19. The bottom line is that while ADA provides employees with some level of confidentiality regarding their medical issues, the need for the pandemic allows employers to make reasonable inquiries about possible COVID-19 exposure and infection.
The guidelines allow employers to ask COVID-19 screening questions upon entering the workplace without violating the ADA. An employer can exclude an employee from the job for refusing to answer such questions. The pandemic also allows an employer to further inquire into why an employee is calling sick from work to determine if it might be COVID-19.
If an employee teleworks or does not come into physical contact with colleagues or other people, the employer must not ask that employee any COVID-19 screening questions. An employer should apply such COVID-19 screening consistently. If this only applies to a specific employee, the employer must have “a reasonable conviction based on objective evidence” that the employee has COVID-19. The EEOC does not allow employers who follow the guidelines of the Centers for Disease Control and Prevention (CDC) to conflict with the ADA.
Employers shouldn’t specifically ask if an employee has a family member with COVID-19. According to the EEOC, such a question is against the law on non-discrimination on genetic information. The better question is whether the employee has been in contact with someone who has COVID-19 rather than limiting it to a family member.
The EEOC continues to stress that confidentiality should be preserved as much as possible. For example, an employer can alert other employees that a COVID-19 case has occurred at work by generally describing the location or role of the employee, but without specifically identifying the employee. The guidelines enable COVID-19-positive employees to report internally to the extent required.
The pandemic has uprooted many ways of life, and the EEOC has provided sensible guidance to help companies align ADA requirements with the urgent medical needs of COVID-19.
Claims related to COVID-19 in the workplace
There have been a number of legal disputes recently involving claims related to COVID-19 in the workplace. Some recent cases serve as harbingers of the types of cases that could soon flood the courts.
A common topic that comes up are cases where employees refuse to go to work because they see it as unsafe working conditions – because they don’t have or do not enforce a mask policy, lack of social distancing, etc. Many such cases are made under the law Filed on the protection of conscientious workers. Another type of case seen recently concerns discrimination based on alleged COVID-19 infection.
While not every complaint about labor conditions and COVID-19 is open to challenge, these complaints underscore the need for employers to take stock of federal, state, and local guidelines on COVID-19, including those from the CDC. Given the novel nature of the disease, there may be confusion if COVID-19 guidelines change.
And we’re only seeing the tip of the iceberg when it comes to COVID-19 lawsuits. Another emerging area is allegations of fraud and abuse related to the misuse of COVID-19 aid funds. And while many are hoping for a vaccine, issues related to the safety of the vaccine, who gets the vaccine first, and whether people need to get the vaccine are likely to spark more lawsuits.
Carolyn Conway Duff is an attorney with Wiley Malehorn Sirota & Raynes in Morristown. Arthur L. Raynes is partner and head of litigation in the law firm.
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