Father comforting two children

On April 14, 2020, New Jersey enacted legislation, Senate Bill 2374, which expands and clarifies the circumstances in which an employee can take time off under the New Jersey Family Leave Act (NJFLA) to care for a family member for reasons related to COVID-19. The legislation also amends the New Jersey Temporary Disability Benefits Law to make available paid leave benefits under the state’s Disability and Family Leave Insurance program to employees who cannot work for specific COVID-19 related reasons or are providing care to family members under certain COVID-19 related circumstances. The law is effective retroactively to March 25, 2020.

Key Changes to New Jersey Family Leave Act (NJFLA)

The NJFLA permits eligible employees to take up to 12 weeks of unpaid, job-protected family leave in a 24-month period. To qualify for NJFLA leave, an employee must have worked for his or her (covered) employer for at least one year, and have worked at least 1,000 hours during the last 12 months. Under the NJFLA, as amended by the new legislation, an eligible employee can take family leave:

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 health care 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.

Clear as mud? If you are experiencing a sense of déjà vu, don’t be alarmed. We recently blogged about similar legislation (Senate Bill 2304) amending the NJFLA and New Jersey’s Temporary Disability Benefits Law, which was enacted on March 25, 2020. The amendments contained in Senate Bill 2374 largely revise and clarify Senate Bill 2304’s earlier changes to those laws.

Key differences between the prior COVID-19 amendments to the NJFLA and the new amendments include:

  • Senate Bill 2374 permits NJFLA leave (and not just NJ Earned Sick Leave) to be used in connection with a school or place of care closure ordered due to COVID-19
  • Senate Bill 2374 eliminates the previous expansion of the NJFLA’s definition of “serious health condition” to include COVID-19 related scenarios, instead creating independent COVID-19 leave reasons under the NJFLA (listed above)
  • Senate Bill 2374 clarifies that employers may not rely on the “key employee” exclusion to deny leave to certain highly compensated salaried employees, when NJFLA leave is requested for any of the new COVID-19 leave reasons
  • Senate Bill 2374 allows employees to use COVID-19 related NJFLA leave intermittently, so long as the employee gives advance notice and makes a reasonable effort to schedule the intermittent leave so as not to unduly disrupt the employer’s operations
  • Senate Bill 2374 sets forth the certification requirements an employer can impose for a COVID-19 related NJFLA leave request

Employers Can Request Certifications for COVID-19 Related NJFLA Leave

As mentioned above, the new legislation provides details concerning what an employer may request in terms of certification of the COVID-19 related need for NJFLA leave. An employer may require certification “issued by a school, place of care for children, public health authority, public official, or health care provider.” If the employee is requesting leave:

  • Due to the closure of a child’s school or place of care, the certification is sufficient if it includes the date on which the closure commenced and the reason for such closure
  • Due to a family member’s ordered quarantine/isolation pursuant to a public health authority determination, the certification is sufficient if it includes the date of issuance of the determination and the probable duration of the determination
  • Due to a family member’s (COVID-19 exposure related) self-quarantine at the recommendation of a health care provider or public health authority, the certification is sufficient if it includes the date of the recommendation, the probable duration, and the medical or other facts within the health care provider or public health authority’s knowledge supporting the recommendation

Key Changes to the New Jersey Temporary Disability Benefits Law

The new legislation made similar changes to the New Jersey Temporary Disability Benefits Law. Namely, the legislation eliminated the prior amendment to the definition of “serious health condition” and instead amended the law’s definition of “disability,” “family temporary disability leave,” and “compensable disability” to include:

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 illness caused by an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of the communicable disease, which requires in-home care or treatment of the employee [or the employee’s family member] due to:

(i) the issuance by a health care provider or the commissioner or other public health authority of a determination that the presence in the community of the employee [or the employee’s family member] may jeopardize the health of others; and

(ii) the recommendation, direction, or order of the provider or authority that the employee [or the employee’s family member] be isolated or quarantined as a result of suspected exposure to a communicable disease.

The new legislation, like Senate Bill 2304, eliminates the seven-day waiting period for disability benefits for this new category of COVID-19 disability claims.Accordingly, Temporary Disability Insurance benefits now extend to eligible employees who cannot work for the COVID-19 related reasons above, and Family Leave Insurance benefits can be paid to eligible employees who are caring for family members subject to isolation or quarantine under these circumstances.

What Employers Should Do

Employers with New Jersey employees should once again review their company policies and procedures to ensure compliance with the changes to the NJFLA and Temporary Disability Benefits Law. Employers should also educate their human resources personnel and any managers responsible for fielding or approving leave requests in New Jersey.

What ReedGroup is Doing

At ReedGroup, we are updating our leave management software and processes to incorporate New Jersey’s legislative changes and to ensure our clients’ employees are receiving the appropriate leave and benefits under the amended laws.

We are continuing to monitor COVID-19 legislative activity in New Jersey and across the nation as many states begin to discuss getting employees back to work. Keep up to date by subscribing to ReedGroup’s blog and check out the new look of our Coronavirus Resource Center.

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.