Bill Text: NJ A4268 | 2020-2021 | Regular Session | Introduced


Bill Title: Permits certain employees to refuse to work due to unsafe working conditions during state of emergency or public health emergency.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced) 2020-06-15 - Introduced, Referred to Assembly Labor Committee [A4268 Detail]

Download: New_Jersey-2020-A4268-Introduced.html

ASSEMBLY, No. 4268

STATE OF NEW JERSEY

219th LEGISLATURE

 

INTRODUCED JUNE 15, 2020

 


 

Sponsored by:

Assemblywoman  VALERIE VAINIERI HUTTLE

District 37 (Bergen)

 

 

 

 

SYNOPSIS

     Permits certain employees to refuse to work due to unsafe working conditions during state of emergency or public health emergency.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning certain employees working in unsafe conditions 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.  During the entire pendency of a public health emergency or state of emergency declared by the Governor, except with respect to employees covered by subsection j. of this act, an employee who: (1) performs functions which involve physical proximity to members of the public or to other employees in the worksite or in employer-sponsored or employer-authorized transportation, housing or dining facilities, and which are essential to the public's health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home; or (2) any other employee deemed an essential employee by the public authority declaring the public health emergency or state of emergency, shall have the right to refuse to work onsite under conditions that violate health and safety standards or otherwise jeopardize the health of the employee or members of the employee's family, either because the employer has not taken sufficient measures to alleviate exposures to communicable disease or other health or safety hazards, or because such measures are not feasible with respect to the available work and the employee, as in the case of the employee driving passengers in a personal vehicle, or in the case of an employee with high vulnerability to serious adverse health effects from the communicable disease or other health or safety hazard.

     b.    The Department of Labor and Workforce Development shall develop standards by which to determine whether, under the circumstances, an employee's decision to refuse to work onsite is reasonable.  Such circumstances that would make an employee's decision reasonable include, but are not limited to, situations where an employer:

     (1)   Refuses to implement or ignores good hygiene and infection control practices;

     (2)   Pressures an employee to work when the worker is sick or fails to require an exposed employee to quarantine a recommended number of days according to the Department of Health when the employer has reason to know the employee has been exposed to a communicable or infectious disease on or off the worksite;

     (3)   Refuses to implement policies and procedures for frequent and thorough hand washing that includes providing employees, customers, and worksite visitors with a place to wash hands, and if soap and running water are not immediately available, providing alcohol-based hand sanitizers containing a certain percentage of alcohol according to the Department of Health standards;

     (4)   Refuses to establish and enforce policies and practices that promote flexible worksites, such as telecommuting, and flexible work hours, such as staggered shifts, to increase the physical distance among employees and between employees and others whenever possible;

     (5)   Ignores or refuses to implement regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment;

     (6)   Fails to isolate employees from hazards, such as installing high-efficiency air-filters, increasing ventilation rates, physical barriers, drive through windows for customers, and isolation rooms wherever possible;

     (7)   Fails to provide employees with the personal protective equipment recommended by the National Institute for Occupational Safety and Health that is needed to keep them safe while performing their jobs; or

     (8)   Fails to take proper steps to sanitize, install health and safety systems or allow employees time off as required by federal or state law or company policy, should an employee test positive or show symptoms of a communicable or infectious disease.

     Within one month of adopting the standards, the department shall institute a public awareness campaign to inform employees and employers of their rights and responsibilities under this act, and how employees can file complaints if employees believe their employers are in violation of this act.

     The department shall review and revise the standards as necessary on at least an annual basis beginning one year after the initial adoption of the standards and immediately upon the declaration of any new state of emergency or public health emergency.

     c.     No employer shall take retaliatory personnel action or discriminate against an employee because the employee, for reasons which are in accordance with this act, refuses to work, or files a complaint with the division alleging the employer's violation of any provision of this act, or informs any other person of their rights under this act. 

     Any employee claiming to be aggrieved by an employer in violation of this act may, personally or by an attorney-at-law, make, sign, and file, within 7 days of the adverse action, a petition in court for a temporary restraining order or a request for temporary relief with the Department of Labor and Workforce Development.

     d.    Upon the submission of a complaint, the division shall contact the employee and employer within a 48 hour period to attempt to promptly resolve the complaint. If the division cannot resolve the complaint within that timeframe, the division shall continue to investigate the matter and make a decision within 120 hours from the submission of the complaint as to whether or not the employee's refusal to work is reasonable under the circumstances and the measures that the employer is required to take, if possible, for the employee to return to work.

     e.     Upon the determination by the division that an employee's decision to refuse to work is reasonable or by consent by the employer of the employee's refusal, an employee who has not been reassigned to other work by the employer shall, in addition to retaining a right to continued employment, continue to be paid by the employer for the hours that would have been worked until such time as the employer can demonstrate to the satisfaction of the division, or if the employee's refusal to work has been consented to by the employer, to the satisfaction of the employee, that the condition has been remedied.

     f.     The department, in consultation with worker centers, worker rights organizations, nonprofit legal services organizations, exclusive representative employee organizations, and unions in the State, shall develop the following:

     (1)   A standard with respect to the right to refuse work.

     (2)   Methods by which an employee can file a complaint with the division pertaining to a violation of this act, including but not limited to, the creation of a 24/7 telephone hotline, an electronic application through the Division's website, and by mail or fax on a standard form; and

     (3)   A dispute resolution process for the division to resolve conflicts between employees and employers with respect to this act, including criteria to be used by the division to make a final determination when investigating cases.

     With respect to the department's consultation with other entities, the department shall give preference to organizations that have at least two or more of the following:

     (1)   multi-lingual capacity;

     (2)   intake and outreach staff or organizers;

     (3)   access to community networks that are culturally relevant to workers in traditionally low-wage industries; or

     (4)   access to a legal clinic.

g.    There shall be a rebuttable presumption of an unlawful retaliatory personnel action under this section whenever an employer takes adverse action against an employee, or a family member of the employee if the family member is also an employee of the employer, within 90 days of when that employee: files a complaint with the division or a court alleging a violation of any provision of this section; informs any person about an employer's alleged violation of this section; cooperates with the department or other persons in the investigation or prosecution of any alleged violation of this section; opposes any policy, practice, or act that is unlawful under this section; or informs any person of his or her rights under this section.  The presumption may be rebutted by clear and convincing evidence that the action was taken for other permissible reasons.

h.    Any failure of an employer to accommodate an employee's reasonable refusal to work in accordance with this act, or any other violation of this act, shall be regarded as a failure to meet the wage payment requirements of the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.), or other violation of that act, as the case may be, and remedies, penalties, and other measures provided by that act, R.S.34:11-58, and section 10 of P.L.1999, c.90 (C.2C:40A-2) for failure to pay wages or other 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), except that an award to an employee in a civil action shall include, in addition to the amount provided pursuant to section 26 of that act (C.34:11-56a25), any actual damages suffered by the employee as the result of the violation plus an equal amount of liquidated damages.

     i.     Within 60 days following the date of enactment of this act, the Commissioner of Labor and Workforce Development shall promulgate rules and regulations necessary to effectuate the purposes of this act.

     j.     Notwithstanding the provisions of subsection a. of this act, this act shall not be applicable to an employee in the public or private sector who, during a state of emergency:

     (1)   is a public safety worker or first responder, including any fire, police or other emergency responders; or

     (2)   is involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities, or homes.

     k.    As used in this act:

     "Commissioner" means Commissioner of Labor and Workforce Development.

     "Department" means Department of Labor and Workforce Development.

     "Division" means the Division of Wage and Hour Compliance in the Department of Labor and Workforce Development.

     "Public health emergency" means an occurrence or imminent threat of an illness or health condition, caused by bioterrorism, epidemic or pandemic disease, or a novel and highly fatal infectious agent or biological toxin, that poses a substantial risk of a significant number of human fatalities or incidents or permanent or long-term disability, and which has been declared a public health emergency by the Governor.

     "State of emergency" means a natural or human-made disaster or emergency, including an epidemic or other health emergency, for which a state of emergency has been declared by the President of the United States, the Governor, a municipal emergency management coordinator, or other public authority permitted by law to declare a state of emergency.

     If the state of emergency does not apply to the entire State, an employee shall be regarded as a covered employee under this act only if the employee is working in the area subject to the state of emergency.

 

     2.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill provides that during any public health emergency or state of emergency declared by the Governor, an employee who: (1) performs functions which involve physical proximity to members of the public or to other employees in the worksite or in employer-sponsored or employer-authorized transportation, housing or dining facilities, and which are essential to the public's health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home; or (2) any other employee deemed an essential employee by the public authority declaring the public health emergency or state of emergency, has the right to refuse to work onsite under conditions that violate health and safety standards or otherwise jeopardize the health of the employee or members of the employee's family, either because the employer has not taken sufficient measures to alleviate exposures to communicable disease or other health or safety hazards, or because such measures are not feasible with respect to the available work and the employee, as in the case of the employee driving passengers in a personal vehicle, or in the case of an employee with high vulnerability to serious adverse health effects from the communicable disease or other health or safety hazard.

     An employee in the public or private sector who, during a public health emergency or state of emergency: (1) is a public safety worker or first responder, including any fire, police or other emergency responders; or (2) is involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities, or homes will not be covered by the bill.

     Under the bill, the Department of Labor and Workforce Development is required to develop standards by which to determine whether, under the circumstances, an employee's decision to refuse to work onsite is reasonable within 60 days following the date of enactment of the bill. The bill lists several circumstances that would make an employee's decision to refuse to work reasonable. The bill requires the department to consult with worker centers, worker rights organizations, nonprofit legal services organizations, exclusive representative employee organizations, and unions in the State in the development of standards, methods for employees to file complaints, and a dispute resolution process for complaints.

     The bill requires the Division of Wage and Hour Compliance to attempt to promptly resolve any complaint within 48 hours from the filing of a complaint. If the division cannot resolve the complaint within that timeframe, the division will continue to investigate the matter and make a decision within 120 hours from the submission of the complaint as to whether or not the employee's refusal to work is reasonable under the circumstances, and the measures that the employer is required to take, if possible, for the employee to return to work.

     The bill prohibits employers from discriminating or retaliating against employees who exercise their rights under this act and treats violations of the act as violations of the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.).

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