New Jersey Expands Employee Leave Benefits

New Jersey Governor Murphy recently signed Senate Bills 2304 and 2374 into law amending the New Jersey’s Earned Sick and Safe Leave Law (“NJESSL”), the Family Leave Act (“NJFLA”), and the Temporary Disability Benefits Law (“NJTDBL”) to provide further protections to employees who cannot work due to circumstances caused by COVID-19. The amendments went into effect immediately.

Amendments of the NJESSL

Pursuant to the NJESSL, all employers who have employees working in New Jersey are required to provide those employees with up to 40 hours of paid safe and sick leave in a 12-month period, which period is designated by the employer.  On March 25, 2020, the Governor signed an amendment that expanded the qualifying reasons for employees to use their accrued safe and sick leave.  Accordingly, employers must now allow employees to use their accrued paid leave when they cannot work because of:

1. A closure of the employee’s workplace, or the school or place of care of 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;
2. 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;
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.

The newly signed laws do not change any other qualifying reason employees may use their accrued leave thus employers must continue to allow employees to use their accrued leave for such use.

Amendments to the NJFL

Expansion of Qualifying Reasons for Family Leave

As previously reported, the NJFLA requires New Jersey employers with 30 or more employees to provide eligible employees with 12 weeks of job-protected unpaid leave in a 24-month period to care for a family member with a serious health condition or to bond with a newly born or adopted child.  On April 14, 2020, the Governor signed a law that immediately allows an employee to take family leave in the event of a state of emergency declared by the Governor, or when indicated to be needed by the Commission of Health or other public health authority, an epidemic of a communicable disease, or effort to prevent spread of a communicable disease, for one of the following reasons:

• Employee’s 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;
• 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 jeopardizes the health of others; or,
• 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.

Certification of Leave

The amendment provides employer the right to require an employee who is seeking to take family leave for any of the above reasons to submit certifications supporting the need for such leave.  These certifications must be issued by a school, place of care for children, public health authority, public official, or health care provider.  If an employee is seeking family leave for reason (1) above the certification must include:

1. The date on which the closure of the school or place of care commenced; and,
2. The reason for such closure.

If family leave is being taken for reason (2) above the certification must include:

1. The date of issuance of the determination; and,
2. The probable duration of the determination.

If family leave is being taken for reason (3) above the certification must include:

1. The date of the recommendation;
2. The probable duration of the condition; and,
3. The medical or other facts within the health care provider or public health authority’s knowledge regarding the condition.

Intermittent Leave

The new law also entitles an employee to take family leave for certain reasons on an intermittent basis.  Specifically, leave that is taken as a result of an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of the communicable 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 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.

Amendments to the NJFLI and the NJTDBL

Lastly, the new law amends the NJFLI and the NJTDBL to provide benefits to employees when they or their family members jeopardize the health of others or are under an order of quarantine or isolation.  Specifically, an employee is entitled to NJFLI or NJTDBL benefits when, 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 the communicable disease, the employee requires in-home care or treatment or must provide the same to a family member 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 or the family member may jeopardize the health of others; and,
• The recommendation, direction, or order of the provider or authority that the employee or the family member be isolated or quarantined as a result of suspected exposure to a communicable disease.

If you have any questions, please do not hesitate to contact David R. Rothfeld, Lois M. Traub, Alexander Soric, Jennifer Schmalz, Robert L. Sacks, Jaclyn Ruocco, Joseph Tangredi, or Brian Polivy.

This memo is provided for informational purposes only. It is not intended as legal advice and readers should consult counsel to discuss how these matters relate to their individual circumstances