This article was co-authored by Kylie Cimmino of Red Clover.
The State of New Jersey has not taken a one size fits all approach in return to school plans for the 2020-2021 school year. The New Jersey Department of Education (“NJDOE”) has received approximately 800 different plans for reopening, and as of September 30, 2020, about half of school districts in New Jersey announced adopting a hybrid in-person and remote learning approach for (at least) the first half of the 2020-2021 school year. Significantly, a little over one third of school districts will be conducting 100% of classes remotely. This is all subject to change and requires adaptability of not only the caretakers and individuals supervising the remote learning but the businesses that employ these affected individuals. There are tough decisions parents will be faced with that are influenced by a myriad of factors, with their employment status and financial stability being at the forefront of these considerations for many.
What can New Jersey employers do? Employers have zero control over the plans implemented by different school districts, but the reopening plans will almost surely affect their workforces. The circumstances and potential need for accommodation can range widely from employee to employee, so how can employers fairly assist their employees in adapting to this new “normal”? Employers should be aware of all applicable legal obligations to provide leave or other forms of accommodations to employees. In addition to complying with such legal obligations, there are other internal policies and procedures employers can enact to support employees, especially those that are directly affected by the education protocols. Depending on the needs of the business and of the specific job an employee has within the organization, the potential range of accommodations will vary, but there are also some practical policies that can be implemented across the board.
Employer Legal Obligations
To address the reality that a significant amount of the workforce will be impacted by the school districts’ reopening plans, federal and state governments have stepped in to impose various legal obligations upon employers to accommodate affected employees in certain circumstances. Further, various pre-pandemic laws may be implicated when employees request time off or other accommodations to care for their children whose education is affected by COVID-19. To ensure employees are being provided with benefits they are entitled to by law, and to avoid legal liability, employers must be wary of the below laws and official government guidance.
Families First Coronavirus Response Act
As we recently blogged, the federal Families First Coronavirus Response Act (“FFCRA”) requires most employers with less than 500 employees to provide paid job-protected leave to employees who cannot work for various reasons relating to COVID-19. Significantly, one of these specified reasons is when an employee has a bona fide need for leave to care for a child whose school or child care center is closed or unavailable due to the pandemic. Specifically, the FFCRA provides up to 80 hours of emergency paid sick leave (generally referred to as “Paid Sick Time” or “PST”) and up to 12 weeks of emergency paid family leave (generally referred to as “Expanded Family and Medical Leave” or “EFMLA”) to employees who cannot work for such childcare purposes. Employees using PST or EFMLA for childcare purposes are entitled to 2/3 of their regular rate of pay, up to a maximum of $200 per day.
On August 27, 2020, the United States Department of Labor (“USDOL”) issued new FAQs, which address common return to school scenarios in light of the fact that many schools will not be opening on a fully in-person basis. In part, the FAQs provide:
- An employee may be entitled to FFCRA leave where their child’s school has adopted a fully remote or hybrid instruction approach. Finding that the school is effectively “closed” on remote days, the USDOL states: “Yes, you are eligible to take paid leave under the FFCRA on days where your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so.” (FAQ 98).
- An employee is not entitled to FFCRA leave when the employee voluntarily decides to keep their child home for 100% remote learning. The USDOL reasons that the child’s school is not “closed” due to COVID-19 related reasons. That being said, where the employee’s child’s school is operating using a hybrid model, the employee may still be entitled to FFCRA leave on each of the child’s remote-learning days because the school is effectively “closed” to the child on those days. (FAQ 99).
Notably, employers will be entitled to tax credits for the cost of providing the required paid FFCRA leave, so long as certain recordkeeping requirements are met. The FFCRA is only a temporary law and is currently set to expire on December 31, 2020.
New Jersey Earned Sick Leave Law
While enacted long before COVID-19, the New Jersey Earned Sick Leave Law may also apply to employees who need leave for childcare purposes. Under this law, New Jersey employees are entitled to 1 hour of paid sick time for every 30 hours worked, up to a maximum of 40 hours of paid sick time per year. Employees are entitled to take such leave for a variety of reasons, including, “time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency[.]”
Shortly after the beginning of the pandemic, the New Jersey Department of Labor (“NJDOL”) issued guidance clarifying that employees who are unable to work because their child’s school or daycare was ordered closed by a public official for a public health reason, or because they have no childcare provider due to COVID-19, may use any accrued paid sick time pursuant to the New Jersey Earned Sick Leave Law.
New Jersey Family Leave
New Jersey employees may also be entitled to take unpaid job-protected family leave under the New Jersey Family Leave Act (“NJFLA”). Initially, the NJFLA provided up to 12 weeks of unpaid leave, during any 24-month period, to employees for the birth of a child, the adoption or placement of a child in foster care, or the care of a family member with a serious health condition.
In response to COVID-19, the NJFLA was amended to expand the protected reasons for leave during a state of emergency or as required by a public health authority to include: (1) to care for a family member that is subject to any declaration by a public health authority, including a mandatory quarantine order, as a result of illness caused by the communicable disease or known or suspected exposure to the communicable disease; (2) to care for a family member who, under the recommendation of a healthcare provider or public health authority, voluntarily self-quarantines as a result of suspected exposure to a communicable disease; or (3) to care for their child whose school or place of care is closed by order of a public official due to the epidemic or other public health emergency. Therefore, an employee who needs time off from work to care for their child whose school or daycare is closed as a result of COVID-19 may be entitled to NJFLA leave.
While NJFLA leave is unpaid as noted above, employees are generally entitled to return to work in the same position they held before taking such leave.
Other Legal Considerations
In addition to the leave laws described above, employers should also be wary of any potential application of federal, state, and local anti-discrimination laws. For example, the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“NJLAD”) both prohibit discrimination based on an employee’s relationship or association with an individual with a disability, whether or not the employee has a disability. These laws could be implicated when an employee needs to stay home to care for a child who cannot attend in-person instruction at school due to having a disability that makes the child more susceptible to severe illness if the child contracts COVID-19.
As set forth in guidance issued by the Equal Employment Opportunity Commission (“EEOC”), employers that provide accommodations to employees with school-aged children due to school closures or distance learning during the pandemic must not provide such accommodations based on sex or any other protected characteristics. For example, the EEOC’s guidance provides that under Title VII, female employees cannot receive more favorable treatment than male employees based on gender-based assumptions regarding caretaking responsibilities. Such inconsistent treatment would also violate the NJLAD.
Notably, the above legal obligations concern only an employee’s need for leave due to the closure of their child’s school or daycare. New Jersey has also passed additional measures to protect employees during the pandemic. For example, the passage of Assembly Bill 3848 prohibits employers from retaliating against an employee who requests or takes time off from work based on the recommendation of a medical professional that the employee has (or likely has) an infectious disease and provides such employees with job protection during the leave. Further, New Jersey expanded laws concerning temporary disability benefits and paid family leave insurance benefits to provide employees with paid benefits for leave taken in certain pandemic-related circumstances. Ultimately, New Jersey employers should consult with counsel to ensure they are in full compliance with the above applicable legal obligations and continue to stay up-to-date with the rapidly changing employment law landscape.
What Else to Consider
In addition to understanding applicable legal obligations, how else can employers support their employees? Similar to the wide range of reopening plans submitted by school districts to the NJDOE, there is not a one size fits all answer. Businesses will need to evaluate what works best for them and their people. There are some things to consider when making such decisions:
- Is remote work sustainable?
- Have employees been successful in working remotely?
- Can all employees maintain work in a remote capacity?
- Does a flexible schedule work for employees and clients alike?
- Is there a need to set core work hours?
This is not an easy decision to make and these questions are just the tip of the iceberg when evaluating how employers may be able to help working parents manage their work schedules and family life.
Remote work has the potential to be successful in many organizations when implemented properly. The option to work from home might be appealing to individuals with young children who need to be monitored when it comes to their remote learning as it allows employees to maintain some balance between work and family responsibilities. What does it mean to implement remote work practices properly? Are expectations clearly provided to employees? Have employees maintained their levels of productivity during the pandemic? What does company culture and morale look like now? Much of what is implemented will look different based on the company and its needs, however there are various policies and procedures that should be adopted to enhance success and employee engagement.