In February of 2019 Governor Murphy signed into law sweeping legislation that significantly expands employee rights to family leave entitlements, provides greater family leave insurance benefits to employees during a leave, expands the definition of “family members,” and finally, provides greater job security to individuals taking family leave. It is critical for employers to understand the multiple changes resulting from this this legislation to ensure that employee’s rights are not being violated.
Amendments to the New Jersey Family Leave Act: While most employers are aware that those with 50 or more employees are covered by the federal Family and Medical Leave Act (FMLA) that accords employees 12 weeks of protected unpaid leave for personal medical leave, or to care for a newborn/newly adopted child or family member with a serious medical condition, many are unaware that New Jersey also has a similar Family Leave Act (NJFLA) that likewise applied to employers of 50 or more and accords 12 weeks of protected unpaid leave to qualifying employees. However, unlike the FMLA, NJFLA leave is only available for bonding with a newborn or newly adopted child, or to care for a family member with serious medical condition; the employee has no personal medical leave rights available under the NJFLA.
Effective June 30, 2019, the employee headcount for coverage under the NJFLA dropped from 50 to 30 employees, taking it out of alignment with the FMLA and making many more small employers subject to the requirements of the NJFLA to provide guaranteed protected bonding and family medical leave to qualifying employees. The amendments further expanded the NJFLA to include family leave in connection with the placement of a child into foster care with the employee or the birth of a child conceived using a gestational carrier agreement; in addition, leave in connection with the birth or adoption of a child which rights were available to employees prior to the amendments.
In addition, the definition of “family member” under the NJFLA was expanded to include a parent-in-law, sibling, grandparent, grandchild, any individual related by blood or any other individual “whose close association with the employee is the equivalent of a family relationship,” a category that will certainly present a challenge to an employer who wants to deny the employee’s leave request to care for an ill individual who does not fall within the traditional family.
Finally, intermittent leave for bonding with a newborn or newly-adopted child may now be taken in intervals as little as a day and may be taken at the employee’s option – employer consent is no longer needed for intermittent bonding leave. The notice requirement for intermittent leave was reduced from 30 to 15 days, but remains at 30 days for continuous and reduced schedule leave.
Enhancement of SAFE Act Benefits: The New Jersey Security and Empowerment Act provides eligible employees working for employers with 25 or more employees with 20 days of unpaid leave to attend to needs (e.g., medical care, court appearances, counselling) resulting from an incident of domestic or sexual violence against the employee or a “family member.” As with the NJFLA, the new law expanded the definition of family member to include a parent-in-law, sibling, grandparent, grandchild, any individual related by blood or any other individual whose association with the employee is equivalent to a family relationship. In addition, employers are no longer permitted to require employees to exhaust paid time off benefits for the leave; employees may elect to do so or opt for benefits through the State Family Leave Insurance Fund (discussed below).
Enhancement of New Jersey Family Leave Insurance and Temporary Disability Insurance Benefits: While leaves under the FMLA and NJFLA are unpaid, employees who are out of work to bond with a newborn/newly adopted child or to care for an ill family member are eligible for monetary benefits from the State Family Leave Insurance Fund (FLI). Similarly, employees out of work due to a personal medical illness or injury unrelated to the workplace are eligible for benefits from the State Temporary Disability Insurance fund (TDI).
Commencing July 1, 2020, the amount of weekly FLI and TDI benefits related to pregnancy or recovery from childbirth will be increased from the current 2/3 of weekly pay with a cap of $650 per week, to 85% of pay and capped at 70% of the statewide average weekly wage, currently $860 per week. The amount of TDI benefits for non-pregnancy-related disabilities remains unchanged. In addition, on July 1, 2020 the number of weeks of eligibility for FLI benefits during a continuous family leave will increase from six to 12 weeks; benefits for an intermittent family leave will increase from 42 to 56 days. The duration of TDI benefits remains unchanged.
As with the NJFLA and SAFE Act, the new law expands the definition of “family member” under the FLI to include any individual who has an association with the employee that is akin to a family relationship. In addition, the seven-day waiting period to collect FLI benefits was eliminated, and employers can no longer mandate exhaustion of paid time-off benefits in lieu of FLI benefits, but the employee retains the option to do so.
While employers are prohibited from retaliating against employees who invoke FLI and TDI benefits, it is important for employers to keep in mind that these are merely wage protection programs that do not guarantee job security. In contrast, employees covered by the unpaid FMLA and NJFLA laws do have reinstatement rights but are required to take LTI and FLI benefits concurrently with those unpaid leaves. However, the law specifies that an employer who is not covered by the NJFLA because it has fewer than 30 employees will not be regarded as having engaged in retaliation for failing to restore the employee to his/her position after the period of FLI benefits.
Employer Actions: The administration of employee leave rights has become an increasingly complicated area for employers to properly navigate. Employers should conduct an audit of all leave, paid time off and other benefit policies, with the assistance of employment counsel, to ensure compliance with these new requirements. In addition, employers should provide training to all management personnel to ensure that they are fully aware of the significant legal rights accorded to employees seeking leave for family reasons.