New Jersey Employment Law

New Jersey recently passed a Paid Sick Leave Law set to take effect on October 29, 2018. (details given in special leave section below). Prior to the October 29, 2018, fringe benefits such as vacation pay, sick leave pay and holiday pay was not required by New Jersey State law. If employer do provide these benefits they must be administered uniformly in accordance with the established policy or employment agreement. An individual may have a basis for a claim if an employer fails to adhere to the policy or agreement.

Under the New Jersey Family Leave Act,  employees are entitled to take leave without losing their jobs. The New Jersey Family Leave Act permits leave to be taken for:

• • • The care of a newly born or adopted child, as long as leave begins within one year of the date the child is born to or placed with the employee; or
    • The care of a parent, a child under 18, spouse, or civil union partner who has a serious health condition requiring inpatient care, continuing medical treatment or medical supervision.

The Family Leave Act considers parents to be: in-laws, step-parents, foster parents, adoptive parents or others having a parent-child relationship with an employee. Each eligible employee may take up to 12 weeks of continuous leave during a given 24-month period. When caring for a family member with a serious health condition, an employee may take leave that is not continuous, for example, intermittent leave or a reduced work schedule. Sometimes an employer’s approval is necessary for this type of arrangement if the leave is taken in connection with the birth or adoption of a child.

Covered Employer includes employers with at least 30 employees or each calendar day of 20 or more calendar workweeks.

• • • The definition of “parent” includes foster parents and those who became parents via a gestational carrier. Likewise, the definition of “family leave” is now expanded to include care for foster children and children who are born via a gestational carrier.
    • The definition of “family member” includes siblings, grandparents and grandchildren, parents-in-law, domestic partners, any individuals related to the employee by blood, and more broadly, “any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.”
    • Employees are eligible to take leave under the New Jersey Security and Financial Empowerment Act (“NJ SAFE Act”) to care for any of the aforementioned individuals in the event of domestic violence or sexually violent incidents. Employees are entitled to a reduced leave schedule for up to 12 consecutive months for any one period of leave, as opposed to 24 consecutive weeks.

Two Programs make up a paid family and medical leave, the NJ Family Leave Insurance & Temporary Disability Insurance Family Leave Insurance (FLI). FLI provides employees with 12 continuous weeks (over a 12-month period) or 56 intermittent days of paid leave. Paid leave is available for employees to take time off work to bond with a new child (birth, foster, or adopted), care for a seriously ill loved one, and deal with issues related to domestic or sexual violence. Any employee working in New Jersey that meets one of the two following requirements: Worked at least 20 weeks during the 52 weeks leading up to the claim, making at least $220 per week, or; Earned at least $11,000 during the 52 weeks leading up to the claim.

Whereas Temporary Disability Insurance (TDI) is paid leave for one’s own non-work-related injury, illness, or other disability, including pregnancy and recovery from delivery.

Amendment to NJFLA – New Jersey amended its state Family Leave Act (“NJFLA”) to cover certain leaves of absence related to communicable diseases such as COVID-19 where a state of emergency is declared. The amended NJFLA adds the following as qualifying events for job-protected 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 the 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; or
    • 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.

Importantly, the amended NJFLA does not provide leave for the employee’s own exposure to a communicable disease, and the leave remains unpaid – although an employee may qualify for a paid leave benefit under New Jersey’s Family Leave Insurance Program.

The amended NJFLA provides a process for leave to be taken intermittently. Specifically, the leave may be taken intermittently if: (i) the employee provides the employer with prior notice of the leave as soon as practicable; and (ii) 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.

Duration of the Leave: Employees are eligible to receive an unpaid leave of absence for up to 20 days in 12 months, to address circumstances resulting from domestic violence or a sexually violent offense.

Eligibility Criteria: The employee must have worked at least 1,000 hours during the immediately preceding 12-month period. Also, the employee must have worked for an employer in the State that employs 25 or more employees.

Usage Of the leave:  An employee can utilize it in the 12 months immediately following an instance of domestic violence or a sexually violent offense. The unpaid leave must be taken at least one day at a time and may be taken intermittently. Employees may take leave for the following purposes if they or a family member are victims of domestic violence or a sexually violent offense:

• • • Seeking medical attention or recovering from injuries caused by domestic or sexual violence.
    • Obtaining services from a victim services organization.
    • Receiving psychological or other counseling.
    • Participating in safety planning, relocating, or taking actions to increase safety from future violence.
    • Seeking legal assistance or remedies for health and safety.
    • Attending, participating in, or preparing for a criminal or civil court proceeding related to an incident of domestic or sexual violence.

Notice Requirement: Employees must provide written notice of the need for leave if foreseeable unless an emergency or unforeseen circumstance prevents prior notice. Notice should be given as far in advance as reasonable and practicable under the circumstances.

Employers have the right to request documentation of the domestic violence or sexually violent offense necessitating the leave. Any documentation received must be kept strictly confidential unless authorized in writing by the employee or required by federal or state law.

Duration of the Leave: Employers of all sizes must provide full-time, part-time, and temporary employees with up to 40 hours of earned sick leave per year for sickness.

Usage of the Leave: Employees can utilize their leave in the following manner:

• • • care for their own, or a loved one’s, physical or mental health or injury.
    • attend a child’s school-related meeting, conference, or event.
    • quarantine based on the advice of a health care provider or public health authority (including the quarantine required when returning to New Jersey from certain states).
    • take care of their children when school or child care is closed due to an epidemic or public health emergency.

Pay: An employee is entitled to receive pay at their regular hourly rate, but no less than the state minimum wage.

Notice: An employee must notify their employee 7 days prior if the leave is decided in advance.  The employer can require reasonable documentation if the use earned sick leave is 3 or more consecutive workdays, or on certain dates specified by the employer.

Unused Sick Leave:  The employee has the option to carry forward a maximum of 40 hours of accrued sick leave into the next benefit year. However, the employer is obligated to allow the employee to utilize only up to 40 hours of leave per benefit year. Alternatively, the employer may choose to compensate the employee for any unused earned sick leave after the benefit year.

Duration of the leave: Eligible employees are entitled to up to 12 weeks of family leave during 24 months.

Eligibility Criteria: All employers with 30 or more employees must comply with the NJFLA for their New Jersey employees. To be eligible for leave under the NJFLA, an employee must:

• • • Be employed in New Jersey by a covered employer;
    • Have been employed for at least 12 months for the employer; and
    • Have worked 1,000 hours in the 12 months prior to the leave.

Usage of the leave: An employee is entitled to use the leave in the following manner

• • • Care for a newborn or newly adopted child within the first year after the birth or adoption; and
    • Care for an immediate family member due to a serious health problem.

An eligible employee may take 12 weeks of family leave within any 24-month period for the birth of the employee’s child, a child’s placement for adoption or foster care with the employee or the serious health condition of an employee’s family member. Leave may be paid, unpaid or a combination.

Employers may require employees to exhaust accrued paid leave, if required for other types of leaves.

Intermittent leave is permitted when taking leave to care for a family member with a serious health condition or taking leave following a foster care placement, birth or adoption of a child. Leave to care for a family member with a serious health condition may be taken on a reduced-schedule basis for up to 12 consecutive months for any one period of leave. The 24-month period may be measured as:

• • • Two calendar years;
    • A fixed 24-month period starting on a specified date, such as the employer’s fiscal year or the anniversary of the employee’s date of hire;
    • The 24-month period beginning on the first day of the employee’s first NJFLA leave; or
    • A rolling 24-month period, measured backward from the date of any NJFLA leave.

When leave is covered by both the FMLA and the NJFLA, the leaves run concurrently. Employees are also provided Temporary Disability Insurance is paid leave for one’s non-work-related injury, illness, or other disability, including pregnancy and recovery from delivery. The leave is available for up to 26 weeks in 12 months for non-work related disability.

Effective January 1st, 2018, employers can’t provide paid or unpaid leave to female employees affected by pregnancy in ways that are less favorable than leave provided to other employees who have a similar ability or inability to work. Pregnancy means pregnancy, childbirth, breastfeeding or expressing milk for breastfeeding, and medical conditions related to pregnancy, childbirth, recovery from childbirth, or breastfeeding.

The Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. 4301, et seq., applies to all employers, regardless of size, including foreign employers doing business in the U.S. USERRA requires all employers to grant a leave of absence for up to 5 years to any person who is absent from a job because of uniformed service. USERRA applies to leaves of absence for all categories of military duty except ‘State Active Duty,’ or Governor ‘call-ups,’ which are protected under N.J.S.A. 38:23C-20a. USERRA only requires a leave of absence; pay for military members is discretionary with each public and private entity.

Any person employed full-time by any agency, independent authority, instrumentality or entity of the State or of any political subdivision of the State shall be excused from employment at all times the person is required to be present for jury service in any court of this State, any court of another state, or any federal district court or in the United States District Court for New Jersey, and shall be entitled to receive from the employer the persons usual compensation for each day the person is present for jury service in lieu of any payment for juror service.

An employer may not terminate, dismiss or suspend any employee who is absent from work due to service in his or her volunteer capacity as a volunteer emergency responder. Volunteer emergency responders include an active member in good standing of a:

• • • • • • • Volunteer fire company;
            • Duly incorporated first-aid, rescue or ambulance squad; or
            • County or municipal volunteer Office of Emergency Management (provided the member’s official duties include responding to a fire or emergency call).

Leave is unpaid; there is no limit on the amount an eligible employee can take. However, if leave exceeds one workday, daily notice from the incident commander is required. Employees must give their employers at least one-hour advance notice of their absence from work to fulfill emergency services in response to a declared state of emergency or emergency alarm. In addition, employees must provide their employers with documentation verifying their absence was related to volunteer emergency services.