New Jersey Further Expands Family Leave and Temporary Disability Benefits in the Wake of COVID-19

On April 14, 2020, Governor Phil Murphy signed into law Senate Bill S2374, which further amends the New Jersey Family Leave Act (FLA) and the New Jersey Temporary Disability Benefits Law (TDBL), including the Family Leave Insurance program (FLI), expanding on prior amendments signed into law on March 25, 2020 (included in Senate Bill 2304), as part of the state’s initial response to the early stages of the COVID-19 pandemic. These amendments are effective immediately and apply retroactively to leave taken on or after March 25, 2020.

As the pandemic has continued, so too have the Legislature’s attempts to address its impact on New Jersey citizens, which have included efforts to protect New Jersey employees who are in need of temporary leave and/or income replacement benefits as a result of circumstances caused by COVID-19. Prior to the COVID-19 related amendments, eligible employees working for covered employers could, under the FLA, take up to 12 weeks of job-protected leave in any 24-month period for the following three reasons:

• The birth of a child, including a child born pursuant to a valid written agreement between the employee and a gestational carrier
• The adoption or foster care placement of a child
• Caretaking for a family member with a serious health condition

As discussed in our prior blog post, the March 25 amendments expanded the scope of a “serious health condition” under the FLA to include illnesses and exposure related to COVID-19 (or epidemics of other communicable diseases). The April 14 amendments create a new and fourth category of FLA leave (“COVID-19 leave”), which not only permits an eligible employee to take job-protected leave to care for a family member whose illness is related to COVID-19 (or other communicable diseases), but also provides leave for an employee to care for a child under certain circumstances, as described below. (The amendments eliminate the recent changes to the definition of “serious health condition,” as such leave now falls within a covered category).

COVID-19 leave is available to eligible employees 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), due to an illness caused by an epidemic of a communicable disease, known or suspected exposure to a communicable disease, or efforts to prevent the spread of the communicable disease, which:

• Requires in-home care or treatment of a child where a child’s school or place of care is closed by order of a public official due to the epidemic or other public health emergency;
• Prompts the Commissioner (or other public health authority) to issue a determination, including by mandatory quarantine, imposing responsive or prophylactic measures, as a result of illness caused by a communicable disease or known or suspected exposure to such disease, because the family member’s presence in the community would jeopardize the health of others; or
• Results in the recommendation of a healthcare provider or public health authority that a family member in need of care by the employee voluntarily undergoes self-quarantine as a result of suspected exposure to a communicable disease, because that family member’s presence in the community would jeopardize the health of others.

A healthcare provider includes a licensed healthcare provider or other healthcare provider that the Director of the Division on Civil Rights deems appropriate. In addition, an employee may take COVID-19 leave intermittently, provided that the employee: (1) gives the employer prior notice of the request for leave as soon as practicable; and (2) makes a reasonable effort to schedule the leave so as not to unduly disrupt the employer’s operations. Where possible, the law requires that the employee provide the employer with notice prior to commencing leave and identify a regular schedule of the days of the week on which intermittent leave will be taken. The law also prohibits employers from denying COVID-19 leave requested due to these new qualifying events, even where leave could otherwise be denied because the employee qualifies as a “key” employee under the FLA.

Under the FLA, an employer may require an employee to provide certification from a licensed healthcare provider to substantiate the need for leave. As amended, the FLA now provides that, where an employee takes COVID-19 leave, an employer may require a certification (e.g., from a school, place of child care, public health official or healthcare provider, depending on the type of leave requested) stating the following information, which varies depending on the specific basis underlying the employee’s need:

• For leave to care for a child whose school or other place of care has closed: The date on which the closure commenced and the reason for such closure.
• For leave taken to care for a family member whose presence in the community has been determined to be a threat to the health of others: The date the determination was issued and the probable duration of that determination.
• For leave taken to care for a family member whose healthcare provider has recommended the family member quarantine due to suspected exposure to a communicable disease that renders the family member’s presence in the community potentially hazardous to public health: The date of the recommendation, probable duration of the condition, and medical or other facts within the healthcare provider’s or public health authority’s knowledge regarding the condition.

Although the FLA does not require paid leave, employees may qualify for income replacement benefits through New Jersey’s FLI program set forth under the TDBL. The TDBL also provides eligible employees with income replacement benefits for periods of absences caused by their own medical conditions. S2374 revises and supplements S2304’s prior amendments to the TDBL concerning income replacement benefits during the COVID-19 pandemic. Prior to the amendments, a “compensable disability” under the TDBL required that the employee be suffering from an “accident or sickness” (with certain limitations for accidents or sicknesses incurred arising from an individual’s employment).

S2304 attempted to bring COVID-19 related absences within the scope of compensable “sickness” under the TDBL. In what is a largely administrative change, S2374 deletes this previous expansion of the term “sickness,” opting instead to create an entirely new category of compensable disabilities that covers the same circumstances as those encompassed in S2304. Thus, the TDBL now provides that an employee will have a qualifying compensable disability during a state of emergency declared by the Governor, or where the Commissioner of Public Health or other public health authority has so determined, if the employee: (1) has an illness caused by a communicable disease; (2) is known or suspected to have been exposed to a communicable disease; or (3) is self-isolating or quarantining as part of an effort to prevent the spread of a communicably disease; and that disease requires in-home treatment of the employee 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.

This law also makes clear that an employee on leave to care for a family member who meets these criteria is deemed to be on “family temporary disability leave” under the TDBL and entitled to FLI income replacement benefits. This expansion of the term “family temporary disability leave” had not been previously addressed in S2304.

New Jersey’s employee leave laws continue to evolve rapidly to provide greater employee protections in the wake of COVID-19. Employers must continue to monitor legislative action and should review their policies and practices to ensure compliance with these new statutory mandates.