On March 25, 2020, the Governor of New Jersey signed into law a bill meant to maximize benefits and protections – both employer and state sponsored – available to employees impacted by the COVID-19 pandemic. The new law expands provisions of New Jersey’s Earned Sick Leave Law, Family Leave Act, and Temporary Disability Benefits Law, making it clear that those laws cover certain absences resulting from epidemic-related emergencies, including the COVID-19 pandemic.
Following are key changes to New Jersey law that will impact covered employers.
EARNED SICK LEAVE
Under the original Earned Sick Leave Law, a number of COVID-19-related leaves already would have been covered. In light of the current circumstances, however, the Legislature and Governor enacted a number of changes – some technical and some substantive – to confirm the availability of paid sick leave for COVID-related absences.
The new law confirms in part and expands in part the reasons why an employee is entitled to use his or her earned sick leave under New Jersey’s Earned Sick Leave Law, to include:
- Closure of an employee’s workplace or because of a state of emergency due to an epidemic or public health emergency;
- “[T]he declaration of a state of emergency by the Governor, or the issuance by a health care provider or the Commissioner of Health” 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”; and/or
- “[D]uring 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.
FAMILY LEAVE ACT
New Jersey’s Family Leave Act, which applies to employers with 30 or more employees, provides job protection to certain employees who take leave for certain protected reasons, including for leaves related to serious health conditions.
Covered Employees
Previously, employers were permitted to deny family leave to certain highly-paid employees who were needed “to prevent substantial and grievous economic injury to the employer’s operations.” Under the amended law, that exclusion does not apply when the leave is due to:
- an order, direction, or recommendation of a health care provider or authorized public official that the employee’s family member – who is in need of care from the employee – be isolated or quarantined;
- the closure of a place of care for the employee’s family member because of a state of emergency or order of an authorized public official during an epidemic of a communicable disease; or
- “a known or suspected exposure to a communicable disease.”
Protected Leave
The new law also amends the definition of “serious health condition.” It confirms that, during a state of emergency or when indicated by a public health authority, a “serious health condition” includes: (1) “an illness caused by an epidemic of a communicable disease”; (2) “a known or suspected exposure to a communicable disease”; or (3) “efforts to prevent spread of a communicable disease, which requires in-home care or treatment of a family member of the employee due to”: (a) “the issuance by a healthcare provider or public health authority of a determination that the presence in the community of a family member may jeopardize the health of others”; and (b) “the recommendation, direction, or order of the provider or authority that the family member be isolated or quarantined.”
Unpaid Leave
Unlike the recent expansion to the FMLA on the federal level, the employer is not required to pay employees for this expanded protected leave period (subject to allowing employees to use accrued leave otherwise available to them). Instead, employers are required to provide job protection to these employees and to reinstate them to their position after their period of protected leave is completed
TEMPORARY DISABILITY BENEFITS LAW
New Jersey’s Temporary Disability Benefits Law provides benefits to employees who are out of work for periods due to their own disability or to care for a family member with a disability.
Covered Leave
The Temporary Disability Benefits Law was amended to make it clear that, during a state of emergency or when indicated by a public health authority, a “serious health condition” is the same as a “serious health condition” under the Family Leave Act, except that it also applies in those circumstances when the employee, not just a family member, requires in-home care or treatment due to: “(1) 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 . . . may jeopardize the health of others; and (2) the recommendation, direction, or order of the provider or authority that the employee . . . be isolated or quarantined as a result of suspected exposure to a communicable disease.”
Family Temporary Disability Benefits
The amended law makes clear that employees may be eligible for family temporary disability benefits if the leave is to care for a family member suffering from an accident or sickness.
Defining “Sickness”
For both temporary disability and family temporary disability benefits, the amended law confirms that, during a state of emergency or when indicated by a public health authority, “sickness” includes those situations expressly outlined in the amended definition of “serious health condition.”
Waiting Period
The amended law removes the seven-day waiting period, during a state of emergency or when indicated by a public health authority, for leaves covered under the law’s expanded definition of “sickness.”
EFFECTIVE DATE OF THE LAW
These changes take effect immediately.
About O’Toole Scrivo, LLC
We are a carefully crafted mid-sized law firm of recognized subject matter experts practicing primarily in New York and New Jersey. We combine large-firm expertise with small-firm attention to client needs, representing businesses, insurance companies, and government entities. We are committed to delivering creative and timely results for the most high-profile and complex matters.
