Amended, Again: New Jersey Clarifies and Further Expands Family Leave and Temporary Disability Benefits for Employees During COVID-19 Pandemic

On April 14, 2020, Governor Murphy signed S2374 into law, which further amends and clarifies the March 25, 2020, expansions to the New Jersey Family Leave Act (NJFLA) and the New Jersey Temporary Disability Benefits Law (TDL). It also creates new reasons an employee may use protected NJFLA leave during an epidemic.

Specifically, during a state of emergency declared by the Governor or when indicated by a public health authority, eligible employees may use family leave to care for a child due to a school or daycare closure; to care for a family member subject to mandatory quarantine; and to care for a family member whose doctor recommends voluntary self-quarantine. The new law also allows employees to use intermittent leave related to the epidemic and clarifies the type of certification an employer can request an employee provides to substantiate leave requests.

REASONS FOR FAMILY LEAVE

Prior to the COVID-19 pandemic, the NJFLA afforded qualifying employees up to 12 weeks of family leave in a 24-month period for the birth or adoption of a child, or to care for a family member with a “serious health condition.” On March 25, 2020, the law was amended to add certain epidemic-related exigencies to the definition of a “serious health condition.”

The April 14, 2020 law eliminates the March 25th expanded definition of a “serious health condition.” Instead, the law addresses epidemic-related leave by amending the definition of “family leave.” Now, during a state of emergency declared by the Governor or when indicated to be needed by a 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 to provide necessary care to a family member when:

• a child whose school or place of care has closed by order of a public official due to the epidemic or other public health emergency;
• a public health authority issues 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
• a health care provider or public health authority recommends that a family member in need of care by the employee voluntarily undergo self-quarantine as a result of suspected exposure to communicable disease because the presence of that family member in the community would jeopardize the health of others.

INTERMITTENT LEAVE

The new law allows epidemic-related intermittent leave. The employee must provide prior notice as soon as practicable and make a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer. When possible, the employee should provide a regular schedule of the days on which the leave will be taken prior to the commencement of the intermittent leave.

NO DENIAL OF EPIDEMIC-RELATED FAMILY LEAVE

The new law reiterates the March 25th proscription of denying epidemic-related leave requests. Specifically, that for leave requests related to an epidemic of communicable disease, an employer may not utilize the provision in the NJFLA that enables the employer to deny leave requests when the employee is among the highest paid employees and the denial is necessary to prevent “substantial and grievous economic injury” to the employer’s operations.

CERTIFICATION

To verify that the leave is being taken for an epidemic-related reason, the new law allows an employer to require that an employee provide certification issued by a school, place of care for children, public health authority, public official, or health care provider. For 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 closure.

When leave is needed to care for a family member because a public health authority issues a determination 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, the certification is sufficient when it includes the date the determination was issued and the probable duration of the determination.

When leave is due to a health care provider or public health authority’s recommendation that a family member in need of care by the employee voluntarily self-quarantine as a result of suspected exposure, the certification is sufficient when it contains the date of the recommendation, the probable duration of the certification, and the medical or other facts within the health care provider or public health authority’s knowledge regarding the condition.

The new law defines “health care provider” as a duly licensed health care provider or other health care provider deemed appropriate by the Director of the New Jersey Division on Civil Rights.

TEMPORARY DISABILITY BENEFITS LAW

The TDL provides temporary insurance benefits to replace some of an employee’s lost wages during qualifying circumstances. Benefits may include Temporary Disability Insurance (TDI) when the employee’s non-work related illness or injury prevents the employee from going to work. Benefits are also available under Family Leave Insurance (NJFLI) when an employee takes leave in order to care for a family member.

Similar to the March 25, 2020, amendments, the new law expands the scope of compensable leave under both branches of the TDL, making temporary insurance benefits available to employees who must isolate or quarantine, and to employees who must care for a family member who is quarantined. Substantively, the new law eliminates the March 25th expanded definition of a “serious health condition,” and instead addresses epidemic-related benefits by integrating them within the definition of “disability,” “family temporary disability leave,” harmonizing the TDL with the amended definitions in the FLA.

The new law expands the TDI definition of “disability” and “compensable disability” during a state of emergency declared by the Governor or when indicated to be needed by a public health authority, to include illness caused by an epidemic of a communicable disease, 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, when a healthcare provider or public health authority issues a determination that the employee’s presence in the community may jeopardize the health of others and recommends, directs, or orders isolation or quarantine as a result of suspected exposure to a communicable disease. The new law further clarifies that for epidemic-related disability, the 7-day waiting period does not apply and disability benefits are payable on the first day of the disability.

With regard to NJFLI, the new law maintains the March 25th expansion to the definition of “compensable disability,” allowing an employee to be eligible for benefits when caring for a family member requiring in-home treatment due to a determination that the family member’s presence in the community may jeopardize the heath of others and quarantines or isolates at the recommendation of a health care provider or public health authority.

BOTTOM LINE

The new law takes effect immediately and is retroactive to March 25, 2020. State and federal laws are changing rapidly. To explore strategies on how your business can navigate the new legal changes surrounding COVID-19, please contact Jennifer Roselle, Esq., Counsel in the firm’s Labor and Human Resources Counseling & Compliance Practice Groups here or Katherine E. Stuart, Esq., Associate in the firm’s Employment Law & Litigation and Human Resources Counseling & Compliance Practice Groups here.