New Jersey Governor Phil Murphy has recently signed into law two important bills – one (AB 3848) providing job protection to certain employees impacted by COVID-19 (“the COVID-19 Act” or “Act”), and the other (S2304) expanding the scope of the New Jersey Earned Sick Leave Law (ESLL), the New Jersey Family Leave Act (FLA), and the New Jersey Temporary Disability Law (“TDBL”). The Act, along with the amendments to the existing laws referenced above, are discussed below and are intended to increase protection and benefits to employees as a result of COVID-19.
Job Protection for Certain Employees Who Take Time Off Due to Infectious Disease
Under the COVID-19 Act, during the Public Health Emergency and State of Emergency declared by Governor Murphy concerning the coronavirus, employers are prohibited from terminating or refusing to reinstate an employee who requests or takes time off from work, for a specified time period, at the recommendation of a licensed New Jersey medical professional because the employee has or is likely to have an infectious disease that could infect others in the employee’s workplace. Upon the employee’s return from time off, he or she must be reinstated to the same position held when leave began, with no reduction in seniority, status, employment benefits, pay, or other terms and conditions of employment.
An employee who believes the Act has been violated may file a written complaint with the Commissioner of Labor and Workforce Development (“Commissioner of Labor”) or bring a private action in court, to seek reinstatement to employment. If the Commissioner of Labor or a court finds by a “preponderance of evidence” an employer to have violated the Act, the employer will be ordered to reinstate the affected employee to the employee’s previously held position, with no reduction in seniority, status, employment benefits, pay, and other terms and conditions of employment. In addition, an employer may be fined $2,500 for each violation of the Act.
Employee Sick Leave, Family Leave, and Temporary Disability Benefits
On March 25, 2020, the Governor signed S2304, expanding the reasons for which an employee may use earned sick leave under the ESLL, take job-protected leave under the FLA, and receive temporary disability benefits, including family leave insurance benefits, resulting from the current COVID-19 pandemic.
To start, the changes to the ESLL clarify and expand “qualifying events” for which an employee may take earned sick leave under State law, and include time in which an employee is unable to work for the following reasons:
- a closure of the employee’s workplace, the employee’s child’s school or place of care, by order of public official, or because of a state of emergency declared by the Governor, due to an epidemic or public health emergency;
- 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 the presence in the community of an employee, or a member of the employee’s family in need of care by the employee would jeopardize the health of others;
- 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.
FLA Amendments and Income Replacement Benefits
The recent amendments also expand the scope of unpaid leave and income replacement benefits available to employees who need to self-isolate or care for family members during periods of isolation or quarantine. Under the FLA, an employee is entitled to an unpaid leave of absence, for up to twelve weeks, to among other reasons, care for a family member with a serious health condition. The definition of “serious health condition” under the FLA, has now been expanded to include, during a state of emergency declared by the Governor, or when “indicated as needed” by the Commissioner of Health (or other public health authority):
- 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 communicable disease, which requires in-home treatment of the employee or family member.
Such leave must be due to:
- a determination by a healthcare provider, the commissioner, or other public health authority that the presence in the community of the employee or family member may jeopardize the health of others; and
- the recommendation, direction, or order of the provider or authority that the employee or family member be isolated or quarantined.
The amendments also limit an employer’s right to deny FLA leave to key employees (i.e., those among the highest paid 5% of the employer’s employees or the seven highest paid employees of the employer, whichever is greater), for the above reasons.
Although the FLA does not require paid leave, employees may qualify for income replacement benefits through the New Jersey Family Leave Insurance program under the State’s TDBL. The TDBL also provides eligible employees with income replacement benefits for periods of absences caused by their own medical condition.
Generally, an employee may be eligible for disability benefits when an employee or family member has a condition which requires inpatient care or for continuing treatment. Under the amendments to the TDBL, an employee may now be eligible to receive paid benefits for the COVID-19 reasons discussed above, either for his or her own condition or that of a family member. In addition, New Jersey has waived the seven day waiting period for TBDL benefits in instances of qualifying isolation or quarantine set forth in the amendments.
As discussed above, New Jersey law is evolving quickly to provide greater employee protections. Accordingly, employers should become familiar with changes to State law, and continue to review their policies and practices to ensure compliance.
Employers should speak with employment counsel as needed. If you have any questions regarding this blog, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.