Newark, New Jersey (May 1, 2020) - On April 14, 2020, New Jersey Governor Phil Murphy signed into law Senate Bill 2374. This bill amends the New Jersey Family Leave Act (NJFLA), the New Jersey Family Leave Insurance law (NJFLI), and the New Jersey Temporary Disability Law (NJDTL) to address COVID-19 related leave issues. Remarkably, it provides a do-over in light of amendments passed hurriedly only two weeks earlier. Please note that the amendments are retroactive to March 25.
To summarize the key provisions, employees may now take (i) job-protected, paid leave to care for family members quarantined due to COVID-19, (ii) protected unpaid leave to care for children who are home as a result of COVID-19 school closures and (iii) intermittent leave. Additionally, employers are permitted to seek certification for these expanded categories of leave and highly paid employees may take leave for COVID-19 related reasons.
All employers operating in New Jersey should take careful note of these amendments because, as a practical matter, they extend the type of leave rights available under the federal Families First Coronavirus Response Act to employers with more than 500 employees and to healthcare providers and emergency responders.
Amendments to the NJFLA
This statute provides eligible employees with up to 12 weeks of unpaid, job-protected leave for the birth of a child of the employee, the adoption or placement of a child in foster care, or the care of a family member with a serious health condition. Based on the amendments, employees may now take leave when a state of emergency is declared relating to an "epidemic," "a known or suspected exposure to a communicable disease," or "efforts to prevent the spread of a communicable disease" that requires them to:
- care for a child whose school or childcare facility is closed by order of a public official due to an epidemic or public emergency;
- care for a family member that is subject to a mandatory quarantine order as a result of an illness caused by an epidemic where the family member's exposure would jeopardize the health of others; or
- care for a family member who is in voluntary self-quarantine recommended by a health care provider or public authority as a result of suspected exposure to a communicable disease.
- In a reflection of how fast events are moving these days, the amendment revamps the definition, adopted on March 25, of a "serious health condition." Such a condition had been expanded to include "an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of a family member of the employee...." That amendment is deleted.
Additionally, employers may ask that their employees provide certification from a "school, place of care for children, public health authority, public official, or health care provider" for any school or childcare closure, mandatory quarantine or other prophylactic measure, or voluntary self-quarantine that is the basis for the requested leave.
The concept of intermittent leave is a familiar one under the federal Family and Medical Leave Act. The NJFLA now incorporates that concept. Employees who take leave "due to an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent the spread of the communicable disease" may take leave on an intermittent basis. However, the employee must give prior notice as soon as practicable and must make a reasonable effort to schedule leave to avoid unduly disrupt the employers' operations of the employer. If possible, the employee must - before starting the leave - provide a regular schedule of the day or days when intermittent leave will be taken.
The final NJFLA amendment is an interesting one. Previously, employers had been permitted to deny leave to salaried employees who were among the highest-paid 5% of the workforce or among the employer's seven highest-paid employees. Now, employers may not deny family leave to such employees who seek family leave that is (i) based on a state of emergency declared by the governor or public health authority and (ii) concerns "an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent the spread of a communicable disease."
Amendments to the NJFLI
Under the NJFLI, employees have a right to compensable "family temporary disability leave." Such leave now includes leave taken for the purpose of caring for a family member in mandatory or self-quarantine due to a declared state of emergency such as COVID-19. Employees thus can receive wage replacement benefits, which last six weeks at present but will increase to 12 weeks effective July 1, 2020.
Note that there is no seven day waiting period required for receipt of COVID-19-related disability benefits.
Amendment to the NJTDL
The legislature had only weeks earlier amended the definition of "disability" under this law. It has now been amended again to encompass pandemic-related conditions. The definition of disability as a compensable condition now includes "an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent the spread of the communicable disease, which requires in-home care or treatment of an employee due to: (i) the issuance by a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of the employee may jeopardize the health of others; and (ii) the recommendation, direction, or order of the provider or authority that the employee be isolated or quarantined as a result of suspected exposure to a communicable disease."
Additionally, the definition of "serious health condition" now encompasses an employee's own pandemic related condition, isolation, or quarantine and "family temporary disability leave" now encompasses pandemic related medical condition, isolation, or quarantine of the employee's family member.
In light of these significant revisions, employers are advised to yet again revisit their policies and practices to ensure compliance. Hopefully, the Governor and legislature will pause before adopting further revision, but we are all adjusting to a new world in which legislative action and reaction is called for rather frequently.
Originally published 1 May 2020
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