By Francine Foner, Esq., Ty Hyderally, Esq.

As the COVID-19 pandemic continues, many employees are working remotely and becoming Zoom savvy. There are, however, instances where employees are perfectly capable of performing their job remotely, but their employer considers that such an arrangement is not practicable and therefore refuses to agree to such an arrangement.

The employer’s refusal may be consistent with current state of law in New Jersey… as long as the arrangement to work remotely is not practicable. Governor Murphy’s Order no. 107 enacted on March 21, 2020, which requires that “All businesses or non-profits in the State, whether closed or open to the public, must accommodate their workforce, wherever practicable, for telework or work-from-home arrangements.” https://www.employmentlit.com/2020/03/27/can-i-refuse-to-go-to-work-during-the-covid-19-outbreak/. Of course, there is the issue of deciding what is practicable. Certainly a gray area which can be argued either way.

However, there is a proposed law that may help employees in such a situation. On April 13, 2020, Bill S2369 was introduced to the New Jersey Legislature, which would waive the required presence of an employee at the workplace during the coronavirus pandemic, when that work can be performed remotely. This new law would remove this practicability assessment and make the issue more focused on can the work be performed remotely. Ways to determine whether a job can be performed remotely are real assessments of employees’ job duties, a review of an offer letter, a review of a position description, etc.

The law, if enacted in its proposed form, would supersede any other law to the contrary, and would be effective retroactively to March 9, 2020 and continue for the duration of the public health emergency and state of emergency declared by Governor Murphy concerning the coronavirus pandemic.

The bill further requires the Commissioner of the New Jersey Department of Labor and Workforce Development (“DOL”), in consultation with other relevant departments, to review and compile a list of statutes relevant to the requirements of the proposed law, and to publish those statutes on the DOL website.

The proposed law’s requirement to permit employees to work remotely “when that work can be performed remotely” differs somewhat from Governor Murphy’s Order No. 107 requiring this accommodation “wherever practicable.” The new law simplifies the analysis and requires only an assessment of whether or not the work can be performed remotely, without regard to whether it is practicable for the employer. There is also no mention of any exemption for essential workers or healthcare providers. Thus, if this law is enacted, it may broaden the scope of employees who must be accommodated by being able to perform their work remotely, even if the employer believes it would not be practicable. The law does not address what would happen if an employer reassigns other tasks to employees that cannot be done remotely in order to get around the law, or the situation where most of an employee’s job can be done remotely but some tasks cannot. If enacted, only time will tell how this law will be ultimately be interpreted and applied.

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