On Tuesday, April 14, 2020, New Jersey Governor Phil Murphy signed S2374 into law, extending New Jersey’s Family Leave Act to provide job-protected leave to an employee who needs to care for a family member regarding the transmission of a communicable disease. Significantly, the amendments will provide employees with up to 12 weeks of unpaid leave in any 24-month period to care for a child whose school has been closed due to COVID-19. The new legislation also revises certain provisions of the previously amended New Jersey Temporary Disability Benefits Law.
These amendments are effective immediately and apply retroactively to leave taken on or after March 25, 2020.
New Jersey Family Leave Act (NJFLA)
Expanded Permissible Uses
Prior to these amendments, the NJFLA required covered employers to provide employees up to 12 weeks of protected family leave in any 24-month period for the birth, adoption, or placement in foster care of a child, or to care for a family member with a serious health condition.
The amendments now separately enumerate epidemic-related reasons for leave and additionally include leave necessitated by epidemic-related closure of a child’s school or place of care. Under both the prior and current versions of the NJFLA, the leave need not be paid.
Accordingly, for purposes of the NJFLA, "family leave" now includes leave so that the employee may provide care:
In the event of a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease, which:
- (a) Requires in-home care or treatment of a child due to the closure of the school or place of care of the child of the employee, by order of a public official due to the epidemic or other public health emergency;
- (b) Prompts the issuance by a public health authority of a determination, including by mandatory quarantine, requiring or imposing responsive or prophylactic measures as a result of illness caused by an epidemic of a communicable disease or known or suspected exposure to the communicable disease because the presence in the community of a family member in need of care by the employee would jeopardize the health of others; or
- (c) Results in the recommendation of a healthcare provider or public health authority that a family member in need of care by the employee voluntarily undergo self-quarantine as a result of suspected exposure to a communicable disease because the presence in the community of that family member in need of care by the employee would jeopardize the health of others.
These new categories of leave are coextensive with the partially paid leave entitlement under the Families First Coronavirus Response Act (FFCRA) (see our previous blogs on the FFCRA here, here, and here). Prior regulations under the NJFLA also make clear that, if an employee requests leave for a reason covered by both the NJFLA and another law, the leave simultaneously counts against the employee’s entitlement under both laws. However, to the extent that the reason for the leave is not coextensive, leave granted under other laws, but not granted under the NJFLA, will not abridge an employee’s right to leave or other protections granted under the NJFLA.
For example, if an employee takes the two weeks of partially paid leave guaranteed under the FFCRA to care for a family member quarantined on the recommendation of a health care provider, these two weeks will also count against the 12 weeks available to the employee under the NJFLA.
Expanded Certification Requirements
Under the NJFLA, an employer may require that an employee provide certification from a duly licensed health care provider. The NJFLA now provides that, where the need for leave is in connection with an epidemic of a communicable disease, the certification is sufficient if it includes:
- (a) For epidemic-related childcare leave, the date on which the closure of the school or place of care of the child of the employee commenced AND the reason for such closure;
- (b) For leave to care for a family member mandated by a public health authority, the date of issuance of the determination AND the probable duration of the determination; OR
- (c) For leave required to care for a family member recommended to self-quarantine, the date of the recommendation, the probable duration of the condition, and the medical or other facts within the health care provider or public health authority’s knowledge regarding the condition.
An employee’s certification for epidemic-related leave should be issued by the relevant school, place of childcare , public health authority, public official, or health care provider.
Narrowed Right to Deny Family Leave to Highly Compensated Employees
Generally, New Jersey employers may deny NJFLA leave to highly compensated employees, i.e., salaried employees among the highest paid 5 percent of their employees, where they provide notice of the denial and the denial is necessary to prevent substantial and grievous economic injury to the employer’s operations. However, employers may not deny highly compensated employees family leave when the need for leave is one of the epidemic-related reasons enumerated above.
Epidemic-related leave may be taken intermittently, but only if:
- The employee provides the employer with prior notice of the leave as soon as practicable; and
- The employee makes a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer.
If possible, the employee should also provide the employer, prior to the commencement of the intermittent leave, with a regular schedule of the day(s) of the week on which the intermittent leave will be taken.
New Jersey Temporary Disability Benefits Law (NJ TDBL)
S2374 also makes corrections to the NJ TDBL, which provides eligible employees with short-term paid disability benefits to care for their own or their family members’ non-occupational disability.
For purposes of the NJ TDBL, the term “disability” has been expanded such that, when the Governor declares a state of emergency, or when the New Jersey Commissioner of Health or other public health authority indicates as much, the term will also 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 the 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.
Eligible employees may also take family temporary disability leave under the NJ TDBL to provide in-home care or treatment of their family member due to one of the epidemic-related reasons. As with the employee’s own disability leave, family temporary disability leave must be taken pursuant to a healthcare provider’s determination, as discussed above. By these changes both the NJ TDBL and the NJFLA now explicitly delineate epidemic-related leave.
Finally, both forms of epidemic-related disability leave are compensable under the NJ TDBL, and payable with respect to the first day of the covered disability. Generally, temporary disability benefits under the NJ TDBL are not payable until the eighth consecutive day of the disability. However, this seven-day waiting period does not apply to a period of epidemic-related disability.
Employers are encouraged to consult counsel as they confront the unique challenges of managing a workforce during COVID-19 and as they consider policy changes necessary to comply with new legislation on the federal, state, and local levels.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.