New Jersey’s Expansion of Employee Leave Laws

May 4, 2020

On March 25, 2020 and on April 14, 2020, New Jersey Governor Murphy signed legislation amending the New Jersey Earned Sick and Safe Leave Law, the New Jersey Family Leave Act, and the New Jersey Temporary Disability Benefits Law.  These amendments expand protections for employees unable to work due to circumstances caused by COVID-19.  All of the  amendments went into effect immediately.  

New Jersey Earned Sick and Safe Leave Law (“NJESSL”)

The NJESSL requires employers to provide covered employees with up to 40 hours of paid safe and sick leave in a 12-month period.  N.J. Stat. § 34:11D-2.  The new amendments expand the qualifying reasons for employees to use their accrued paid safe and sick leave to include: 

  1. a closure of the employee's workplace or the school or childcare facility of the employee’s child, by order of a public official or because of a state of emergency declared by the Governor, due to an epidemic or other public health emergency;
  2. the declaration of a state of emergency by the Governor, or the issuance by a healthcare provider or the Commissioner of Health or other public health authority of a determination that an employee’s presence in the community, or an employee’s family member, who is in need of care by the employee, would jeopardize the health of others; or
  3. during a state of emergency declared by the Governor, or upon the recommendation, direction, or order of a healthcare provider or the Commissioner of Health or other authorized public official, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by the provider or authority that the presence in the community of the employee or family member would jeopardize the health of others.

New Jersey Family Leave Act (“NJFLA”)

The NJFLA requires employers with 30 or more employees to provide qualifying employees with 12 weeks of job-protected unpaid family leave in a 24-month period to care for a family member with a serious health condition, or for the birth or adoption of a child.  N.J. Stat. §§ 34:11B-3, 34:11B-4.

Expanded Definition of a “Serious Health Condition”

The new amendments to the NJFLA provide additional benefits to employees by expanding the definition of a “serious health condition.”  Now, a “serious health condition” includes 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 an employee’s family member due to:

  • a determination by a healthcare provider or public health authority that the employee or family member’s presence in the community may jeopardize the health of others; and
  • a recommendation, direction, or order by a healthcare provider or public health authority that the employee or employee’s family member be isolated or quarantined as a result of suspected exposure to a communicable disease.

This expanded definition of a “serious health condition” only applies 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. 

Limitation on Employer’s Right to Deny NJFLA Leave

The amendments clarify that an employer is not permitted to deny an employee’s request for family leave if the need for such leave is due to:

  • an order, direction, or recommendation by a healthcare provider or authorized public official that an employee’s family member, who needs care from the employee, be isolated or quarantined; 
    or
  • a place of care of an employee’s family member being closed because of a state of emergency declared by the Governor or order of the Commissioner of Health or other authorized public official, during an epidemic of a communicable disease, or a known or suspected exposure to a communicable disease.

Expansion of Qualifying Reasons to Take NJFLA Leave

The amendments also expand the qualifying reasons that an employee may take family leave to address circumstances related to COVID-19. An employee may now take NJFLA leave to:

  1. provide care or treatment for his or her child whose school or childcare facility has been ordered closed by a public official due to the epidemic or other public health emergency;
  2. provide care to a family member sick as a result of an epidemic of a communicable disease or known or suspected exposure to the communicable disease and subject to a restrictive determination by a public health authority, including a mandatory quarantine; or
  3. provide care to family member who, upon the recommendation of a healthcare provider or public health authority, voluntarily undergoes self-quarantine due to suspected exposure to a communicable disease.

Changes to NJFLA Leave Certification Requirements

The amendments change the requirements for certifications supporting an employee’s NJFLA leave. Previously, under the NJFLA, an employer could require that an employee’s family leave to be supported by a certification issued by a healthcare provider. N.J. Stat. § 34:11B-4. 

The new amendments clarify that an employer may require an employee’s family leave to be supported by certification from a school, place of care for children, public health authority, public official, or healthcare provider where the leave is for an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease.  Such certifications must include specific information depending on the reason the employee takes family leave.  

If family leave is sought by an employee for reason (1) listed above, the certification must include:

  • the date on which the closure of the school or place of care commenced; and 
  • the reason for such closure.

If family leave is sought by an employee for reason (2) listed above, the certification must include:

  • the date of issuance of the determination; and 
  • the probable duration of the determination.

If family leave is sought by an employee for reason (3) listed above, the certification must include:

  • the date of the recommendation;
  • the probable duration of the condition; and 
  • the medical or other facts within the health care provider’s or public health authority’s knowledge regarding the condition

Expansion of Intermittent NJFLA Leave

The amendments provide an employee with the right to take intermittent family leave due to an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of the communicable disease, subject to certain conditions. An employee may take intermittent family leave if: 

  • the employee provides his or her employer with advanced notice of the employee’s need for intermittent leave as soon as practicable; and 
  • the employee makes a reasonable effort to schedule the leave so as not to unduly disrupt the employer’s operations and provide a regular schedule of when the intermittent leave will occur. 

New Jersey Temporary Disability Benefits Law (“NJTDBL”)

The NJTDBL requires employers subject to New Jersey’s Unemployment Compensation Law, N.J. Stat. § 43-21-1 et seq., to provide temporary disability leave to employees who suffer a compensable disability not arising from or during the course of the employee’s employment and family temporary disability leave to provide care to a family member with a serious health condition.  N.J. Stat. §§ 43:21-27; 43:21-29.

As with the NJFLA, the new amendments to the NJTDBL provide that 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, a “compensable disability” and “serious health condition” 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 or employee’s family member due to: 

  • a determination by a healthcare provider or public health authority that the employee or family member’s presence in the community may jeopardize the health of others; 
    and
  • a recommendation, direction, or order by a healthcare provider or public health authority that the employee or employee’s family member be isolated or quarantined as a result of suspected exposure to a communicable disease.

 
Takeaway For Employers

New Jersey employers should review and update their leave of absence policies to comply with the new amendments to NJESSL, NJFLA, and NJTDBL, which address employees’ need for leave resulting from circumstances related to COVID-19.  New Jersey employers should also be mindful to continue complying with all of the usual requirements of the NJESSL, NJFLA, and NJTDBL as employees may need leave for reasons unrelated to the COVID-19 pandemic.

These materials were prepared by Putney, Twombly, Hall & Hirson LLP prior to their combination with Bond, Schoeneck & King for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create an attorney-client relationship or an attorney-client privileged communication. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.