On the heels of one of the most difficult winters in recent memory, a recently-introduced bill (S1717) in the New Jersey Senate would protect employees from adverse actions due to absence from the workplace during a “state of emergency.” According to the bill, a “state of emergency” is a natural or man-made disaster or emergency for which a state of emergency has been declared by the governor or municipal emergency management coordinator. The bill covers all employers except for public safety agencies, which it defines as state, county or local divisions responsible for dispatching or providing law enforcement, firefighting, emergency medical services, or other emergency services.

The proposal would prohibit employers from discharging or otherwise taking any adverse action against an employee with respect to compensation, terms, conditions, or other privileges of employment, because an employee is not actively working and performing all regular duties at the place of business due to a state of emergency. The bill also prohibits employers from forcing an employee to use sick, personal, or other leave (paid or unpaid) for time taken from work due to a state of emergency, although employers will not be required to compensate employees for such time.

Employees unable to work due to a state of emergency must make every possible effort to notify the employer of the absence from work due to the state of emergency, and must return to work as soon as possible, but not later than the first shift or regularly scheduled work hours occurring after the state of emergency has been rescinded, accounting for time needed to travel to the place of business.

The bill imposes civil penalties up to $5,000 for the first violation and $10,000 for each subsequent violation.

If passed, S1717 will add another layer of protection for Garden State employees on top of the recent Hurricane Sandy-inspired law designed to preserve leave and benefits for employees furloughed or laid off as a result of “states of emergency.”  Indeed, earlier this year, a new law came into effect to permit employees out of work due to a “state of emergency” to credit up to ninety calendar days of furlough or lay off time as if it were time worked for purposes of determining eligibility requirements under New Jersey’s Family Leave Act (FLA) or the Security and Financial Empowerment Act (SAFE Act).  (To be eligible for leave under the FLA or SAFE Act, an employee must have been employed for at least 12 months and have worked at least 1,000 base hours in the immediately preceding 12-month period.)  The new law also allows an employee to use up to thirteen weeks of furlough/lay off time as “base weeks” for purposes of meeting eligibility requirements for temporary disability and family leave insurance benefits (but not for purposes of calculating the “average weekly wage”). Check out our client alert on the recent law, and be sure to follow up with us on the progress of S1717 as it moves to the New Jersey Senate Labor Committee.

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Photo of Joseph O’Keefe Joseph O’Keefe

Joseph C. O’Keefe is a partner in the Labor & Employment Law Department and Co-Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Joe is an experienced trial lawyer who, for more than 30 years, has litigated employment disputes of all…

Joseph C. O’Keefe is a partner in the Labor & Employment Law Department and Co-Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Joe is an experienced trial lawyer who, for more than 30 years, has litigated employment disputes of all types on behalf of employers, before federal and state courts, arbitral tribunals (e.g. FINRA and AAA), and state and federal administrative agencies throughout the U.S. Joe has litigated employment-related lawsuits alleging breach of non-compete agreements, theft of trade secrets, discrimination, sexual harassment, whistleblowing, wage and hour violations, Title IX violations, breach of contract, defamation, fraud and other business related torts. Joe’s practice includes representing clients in complex class and collective litigation, including alleged violation of state and federal pay equity laws, violations of wage and hour laws and discrimination claims. Joe’s experience includes appellate work in both federal and state courts.

In addition to his extensive litigation practice, Joe regularly advises employers, writes and speaks on a wide range of employment related issues. He counsels clients concerning pay equity, use of Artificial Intelligence in the workplace, management of personnel problems, ADA/FMLA compliance, reductions in force, investigation of employee complaints, state and federal leave laws, wage and hour issues, employment policies and contracts.

Joe represents employers in a variety of industries including financial services, higher education (colleges and universities), pharmaceuticals/medical devices, health care, technology, communications, fashion, consumer products, publishing, media and real estate. He frequently writes articles concerning developments in the law and speaks at seminars concerning legal developments in the labor and employment law field.