COVID-19 Prompts Changes to New Jersey’s Leave Laws – What Employers Need to Know

The COVID-19 pandemic has resulted in permanent changes to several of New Jersey’s Leave Laws

The coronavirus (COVID-19) pandemic has resulted in permanent changes to the New Jersey Earned Sick Leave Law (NJESL), New Jersey Family Leave Act (NJFLA), and the New Jersey Temporary Disability Benefits Law (NJ TDBL). The most significant changes involve the ability of employees impacted to COVID-19 to use earned sick leave under the NJESL, as well as to take family leave under the NJFLA.

The changes took effect immediately and apply retroactively to leave taken on or after March 25, 2020.

New Jersey Earned Sick Leave Law 

Under the New Jersey Earned Sick Leave Law, workers are entitled to at least five sick days a year, earning one hour of paid sick time for every 30 hours worked. Employers must pay workers for earned sick leave at the same rate of pay, and with the same benefits, as they normally earn. Under the sick leave law, workers may use paid leave for their own qualifying need or for that of a family member.

Under Senate Bill 2304, which Gov. Phil Murphy signed into law on March 25, 2020, employers must allow employees to use leave for the following reasons:

• A closure of the employee’s workplace, or the school or place of care of a child of the employee 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;
• The declaration of a state of emergency by the Governor, or the issuance by a health care provider or the Commissioner of Health or other public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others; or
• 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 

As New Jersey employers should be aware, the New Jersey Family Leave Act entitles certain employees to take up to 12 weeks of family leave in a 24-month period without losing their jobs. Previously, eligible employees could take leave for the care of a newly born or adopted child or the care of a family member who has a serious health condition requiring in-patient care, continuing medical treatment or medical supervision. Senate Bill 2374 adds a provision addressing leave during communicable disease epidemics.

The new law amends the definition of family leave so that an employee may take 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:

• 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;
• 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
• 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.

Senate Bill 2374 also amends the NJFLA’s certification provisions. Under the statute, an employer may require that any period of family leave be supported by certification issued by a duly licensed health care provider. With regard to leave taken due to a communicable disease pandemic, the certification is sufficient if it includes:

• 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;
• 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
• 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. 

As amended, the NJFLA also addresses intermittent leave for epidemic-related reasons. In the case of leave taken 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, the leave may be taken intermittently if: (1) the covered individual provides the employer with prior notice of the leave as soon as practicable; and (2) the covered individual makes a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer and, if possible, provide the employer, prior to the commencement of the intermittent leave, with a regular schedule of the day or days of the week on which the intermittent leave will be taken.

Epidemic-related leave is also unique in that employers can’t deny NJFLA leave to highly compensated employees, which are defined as salaried employees among the highest-paid five percent of their employees. Typically, such a denial is allowed, provided that employers provide notice of the denial and the denial is necessary to prevent substantial and grievous economic injury to the employer’s operations.

New Jersey Temporary Disability Benefits Law

As employers are aware, the state’s Temporary Disability Benefits Law currently allows workers to take up to six weeks of paid leave during any 12-month period in the form of state temporary disability insurance (TDI) benefits. Senate Bill 2374 amends the law with regard to epidemic-related leave.

Under the NJ TDBL, the definition of “disability” now includes an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of the communicable disease, in the event that the Governor has declared a state of emergency, or when indicated to be needed by the Commissioner of Health or other public health authority. Leave may be used to provide in-home care or treatment of the employee required due to:

• 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
• 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.

Employees may similarly take family temporary disability leave under the NJ TDBL to provide in-home care or treatment of their family member for one of the reasons stated above. Amendments to the NJ TDBL also eliminate the seven-day waiting period for benefit eligibility when benefits are sought related to an employee’s own serious health condition if it falls within the newly expanded definition. 

Next Steps for New Jersey Employers

New Jersey’s expanded family leave laws may require employers to provide leave to certain employees during the current COVID-19 pandemic. For all employers, it is advisable to review and update your leave policies and procedures to reflect the amendments.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Sarah Tornetta, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.