Thomas J. Szymanski
New Jersey Governor Phil Murphy recently signed S2374 into law, expanding the New Jersey Family Leave Act (“NJFLA”) and New Jersey Temporary Disability Benefits Law (“NJTDBL”) and providing additional employee protections during the coronavirus COVID-19 pandemic and future epidemics, including (1) the expansion of reasons for leave; (2) certification changes; (3) intermittent use of such leave; (4) changes related to highly compensated employees; and (5) the expansion of the scope of compensable leave under NJTDBL. These changes are effective immediately and apply retroactively to March 25, 2020.
NJFLA—Expanded Reasons for Leave
During a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, due to “an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease,” an employee may use NJFLA leave for the following new reasons:
- Childcare—to care for a child due to a school or daycare closure;
- Mandatory quarantine— to care for a family member subject to mandatory quarantine; and
- Voluntary self-quarantine—to care for a family member whose doctor recommends a voluntary self-quarantine.
Leave for these newly created epidemic-related reasons requires a certification that includes the following:
- Childcare—the date the school or daycare closure commenced and the reason for the closure;
- Mandatory quarantine—the date of the determination and the probable duration; or
- Voluntary self-quarantine—the date of the recommendation, the probable duration, and the medical or other facts within the healthcare provider or public health authority’s knowledge regarding the condition.
Such a certification should be issued by the relevant school or daycare, public health authority, public official, or healthcare provider.
Eligible employees may now be able to take intermittent leave for epidemic-related reasons if they (1) provide prior notice as soon as practicable; and (2) make a reasonable effort to schedule the leave so as not to unduly disrupt the employer’s operations. Additionally, prior to commencing intermittent leave, employees should provide a regular schedule of the days on which the leave will be taken, when possible.
NJFLA—Highly Compensated Employees
Employers cannot deny epidemic-related NJFLA leave on the basis that employee is highly compensated. Employers, however, can still deny NJFLA to highly compensated employees for non-epidemic-related reasons where (1) the employee earns a salary among the top five percent of employees or the seven highest-paid employees; and (2) the denial is necessary to prevent substantial and grievous economic injury to the employer’s operations.
The NJTDBL, a state-run program that provides eligible employees with short-term insurance benefits to replace some of an employee’s lost wages during qualifying circumstances, has similarly been expanded. During a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, due to “an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease,” an employee may qualify as disabled and receive benefits when under:
- Mandatory quarantine—when the employee is subject to mandatory quarantine; or
- Voluntary self-quarantine—when the employee’s doctor recommends a voluntary self-quarantine.
Temporary disability insurance benefits are also available to eligible employees who must care for a family member who is subject to mandatory quarantine or whose doctor recommends a voluntary self-quarantine.
The normal seven-day waiting period for disability benefits does not apply to an epidemic-related disability, and such benefits are payable to eligible employees on the first day of the disability.
Please contact a member of Blank Rome’s Labor & Employment practice group if you have any questions about compliance with New Jersey’s leave laws or any other leave issues.
For the latest updates, please visit Blank Rome’s Coronavirus (“COVID-19”) Task Force page.