SENATE, No. 3017

STATE OF NEW JERSEY

219th LEGISLATURE

 

INTRODUCED OCTOBER 19, 2020

 


 

Sponsored by:

Senator  M. TERESA RUIZ

District 29 (Essex)

 

 

 

 

SYNOPSIS

     Concerns work accommodations during COVID-19 pandemic.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning telework and work-from-home arrangements and other work accommodations during the coronavirus disease 2019 pandemic and supplementing Title 34 of the Revised Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    a.  It shall be, during the public health emergency and state of emergency declared by the Governor pursuant to P.L.2005, c.222 (C.26:13-1 et seq.) and state of emergency declared by the governor pursuant to P.L.1942, c.251 (C.App.A:9-33 et seq.) concerning the coronavirus disease 2019 pandemic and any subsequent extensions of those emergencies, an unlawful employment practice for any employer in the State, including any businesses or non-profit employer, to require an employee to be physically present for work, when that work can be performed remotely.  All employers in the State, whether closed or open to the public, shall accommodate their employees, wherever practicable, for telework or work-from-home arrangements.  As used in this section, “telework” means the practice of working from home or alternative locations closer to home which, through the use of technology that equips the individual to access necessary materials, permit an employee to avoid direct proximity to other employees and members of the public.

     b.    To the extent an employer has both employees who can and employees who cannot perform their essential functions via telework or work-from-home arrangements, the employer shall make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.  Examples of employees who need to be physically present at their work site in order to perform their duties include, but are not limited to, law enforcement officers, fire fighters, and other first responders, cashiers or store clerks, construction workers, utility workers, repair workers, warehouse workers, lab researchers, information technology maintenance workers, janitorial and custodial staff, and certain administrative staff.

     c.     If an employee’s essential duties cannot be performed remotely, an employer shall make accommodations for the employee, to the extent the accommodations are feasible based on the duties of the employee and the worksite environment, and in accordance with any guidance issued by the federal Centers for Disease Control and Prevention, and any guidance issued by State health authorities, with respect to the coronavirus disease 2019 pandemic.  The employer shall not be required to make an accommodation under this subsection if the employer can demonstrate that the accommodation would create an undue hardship on the business operations of the employer.

     d.    The employer shall not in any way penalize the employee in terms, conditions or privileges of employment for:

     (1)   requesting or using telework or work-from-home arrangements in accordance with this section; or

     (2)   making a complaint to the employer, the Department of Labor and Workforce Development, or a representative of the employee, regarding any violation by the employer of the provisions of this section.

     e.     There shall be a rebuttable presumption that an employee can perform work remotely if that employee has already performed work remotely for two consecutive pay periods, or two weeks, whichever is less time.  The presumption may be rebutted by a preponderance of the evidence showing that the employee cannot perform essential duties remotely.

     f.     Any failure of an employer to comply with the provisions of this subsection regarding the provision of telework or work-from-home arrangements, reductions of onsite staff, accommodations of remaining onsite employees, or refraining from penalizing employees from requesting or using telework or work-at-home arrangements or making a complaint about a violation by the employer, shall be regarded as a failure to meet requirements of the “New Jersey State Wage and Hour Law,” P.L.1966, c.113 (C.34:11-56a et seq.), and remedies, penalties, and other measures provided by that act or article 3 of chapter 11 of Title 34 and any supplement to that article, for violations of that act, shall be applicable, including, but not limited to, penalties provided pursuant to sections 23 and 25 of that act (C.34:11-56a22 and 34:11-56a24), and civil actions by employees pursuant to section 26 of that act (C.34:11-56a25) for any losses incurred by the employee because of employer noncompliance.

     g.    The Commissioner of Labor and Workforce Development shall promulgate rules and regulations necessary to effectuate the purposes of this section.

 

     2.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill, during the current emergency concerning the coronavirus disease 2019 pandemic and any subsequent extensions of that emergency, makes it an unlawful employment practice for any employer to require an employee to be physically present for work when that work can be performed remotely.  All employers are required to accommodate their employees, wherever practicable, for telework or work-from-home arrangements.

     To the extent an employer has both employees who can and employees who cannot perform their essential functions via telework or work-from-home arrangements, the bill requires the employer to make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.  If an employee’s essential duties cannot be performed remotely, the bill requires the employer to make appropriate accommodations for the safety of the employee consistent with the guidance to employers issued by the federal CDC and any guidance issued by State health authorities, to the extent feasible based on the duties of the employee and the worksite environment.  The employer is not required to make an accommodation if the accommodation would create an undue hardship on the employer’s business.

     The employer is prohibited from in any way penalizing the employee in terms, conditions or privileges of employment for: requesting or using telework or work-from-home, or making any complaint regarding an employer violation of the provisions the bill.

     The bill stipulates that there is a rebuttable presumption that an employee can perform work remotely if that employee has already performed work remotely for two consecutive pay periods, or two weeks, whichever is less time.

     An employer’s failure to comply with the requirements of the bill is regarded as a violation of the “New Jersey State Wage and Hour Law,” P.L.1966, c.113 (C.34:11-56a et seq.), and subject to the remedies, penalties, and other measures provided by that act.