Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events
Employment Law Newsletter
For several decades New Jersey employers with 50 or more employees have been grappling with the administration of employee leave rights – 12 weeks in any 12- or 24- month period – under the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA). The administrative challenges were heightened when the New Jersey Paid Family Leave Law – applicable to all employers regardless of size – was added to the mix. Well, things are about to become even more complicated. Effective October 1, 2013, New Jersey employers of 25 or more employees are required to provide 20 days of unpaid protected leave for eligible victims of domestic or sexual violence under the New Jersey Security and Financial Security Act (the NJ SAFE Act).
Who is eligible for leave under the NJ SAFE Act? Like the eligibility requirements under the NJFLA, employees must have worked for the employer for at least 12 months and for at least 1,000 hours in the immediately preceding 12-month period. In comparison, employees must have one year of service and 1,250 hours of work to qualify for benefits under the FMLA.
What circumstances trigger leave rights? Qualifying employees are able to take leave if they are the victim of domestic or sexual violence, or if the employee’s child, parent, spouse, domestic partner, or civil union partner is the victim of domestic or sexual violence.
For what purposes is the employee able to take leave? Employees can take leave for the purpose of engaging in any of the following, either on behalf of themselves or on behalf of the employee’s child, parent, spouse, domestic partner, or civil union partner:
- Seeking/receiving medical treatment
- Obtaining services from a victim services organization
- Obtaining psychological or other counseling
- Participating in safety planning, moving or taking other actions to increase safety
- Seeking legal assistance
- Attending, participating or preparing for criminal or civil court proceedings
How can the leave be taken? Once again, essentially mirroring the FMLA and NJFLA, leave under the NJ SAFE Act must be taken within the 12-month period following any incident of domestic/sexual violence. Each incident of domestic/sexual violence shall constitute a separate offense for which an employee is entitled to leave, provided that the employee has not exhausted the allotted 20 days in the preceding 12-month period. Moreover, similar to the FMLA and NJFLA, the leave may be taken intermittently, but under this new law, in intervals of no less than one day. If the necessity for the leave is foreseeable, the employee must provide written notice to the employer as far in advance as is reasonable and practical under the circumstances.
Can the employer require employees to exhaust paid time off benefits during the leave? Yes. As with the FMLA and NJFLA, the employee may elect, or the employer may require, the employee to exhaust any accrued vacation, sick leave or other paid time off benefits concurrently with the leave, in which case the employee would receive payment for those days. Employers seeking to impose such a requirement should adopt written policies setting forth the exhaustion requirement, which should be applied equally to all leave of absence programs.
How does the employer know that the employee is legitimately a victim of violence? The NJ SAFE Act permits employers to require employees invoking leave rights to produce any one of the following to verify the need for leave:
- a domestic violence restraining order or other documentation from a court of competent jurisdiction;
- a letter or other written documentation from the county or municipal prosecutor documenting the domestic violence or sexually violent offense;
- documentation of the conviction of a person for the domestic violence or sexually violent offense;
- medical documentation of the domestic violence or sexually violent offense;
- a certification from a certified Domestic Violence Specialist or the director of a designated domestic violence agency or Rape Crisis Center that the employee or employee’s child, parent, spouse, domestic partner, or civil union partner is a victim of domestic violence or a sexually violent offense; or
- other documentation or certification of the domestic violence or sexually violent offense provided by a social worker, member of the clergy, shelter worker or other professional who has assisted the employee or employee’s child, parent, spouse, domestic partner, or civil union partner in dealing with the offense.
Employers are required to keep all information relative to the employee’s leave strictly confidential, and can disclose the information only upon written consent of the employee or as otherwise permitted by law.
What is the interplay between leave rights under the NJ SAFE Act and the FMLA, the NJFLA and other laws? This is perhaps the million dollar question. The statute provides that if an employee requests leave for a reason covered by both the NJ SAFE Act and the FMLA or the NJFLA, the leave will be counted concurrently against the employee’s entitlement under each respective law. However, the statute further provides that leave granted under the act shall not conflict with any rights under the FMLA, the NJFLA or the New Jersey Temporary Disability Benefits Law. Thus, if an employee is out of work because she is receiving medical treatment for injuries sustained in a domestic violence incident, the time off under the NJ SAFE Act could be counted concurrently as a qualifying leave under the FMLA. If, however, the employee is asking for time off to attend a court proceeding, the employer will be required to accommodate the employee with time off from work under the NJ SAFE ACT, but the time will not be counted against the employee’s leave entitlement under either the FMLA or the NJFLA. This can therefore create several troubling scenarios that are not directly addressed in the new statute.
Scenario One: Employee #1 takes 12 weeks of leave to recover from injuries she sustained in a domestic violence incident. Two months later she requests two months of medical leave for treatment of breast cancer. Whereas the first leave was covered by both the NJ SAFE Act and the FMLA, it was counted concurrently under both statues and the employee has fully exhausted all leave entitlement. The second leave request can therefore be denied.*
Employee #2 takes 12 weeks of leave to recover from spinal surgery, and several weeks after her return to duty is the victim of a violent sexual assault and seeks leave to recover from her injuries. Whereas the initial leave was covered by the FMLA but not by the NJ SAFE Act, in this instance the employee is entitled to an additional 20 days of leave, despite the fact that— aside from the timing of the injuries—her situation is no different from that of employee #1.
Scenario Two: An employee takes 5 days of leave under the NJ SAFE Act to accompany her daughter when she meets with her lawyer to prepare for a domestic violence hearing in the Superior Court of New Jersey and then to appear as a witness at that hearing. Two months later, the employee seeks 12 additional weeks of leave under the FMLA as a result of serious injuries sustained in a car accident. Whereas the first leave of absence was covered only under the new NJ SAFE Act, the initial 5 days of leave could not be counted concurrently with the employee’s FMLA leave entitlement. The employee is therefore entitled to her full 12 weeks of FMLA in connection with her medical leave for injuries suffered in the recent car accident.
Is the employee guaranteed a position at the conclusion of the leave? Yes, consistent with the FMLA and NJFLA, the employee must be returned to the same or comparable position at the conclusion of the leave. In addition, the employer is prohibited from engaging in any form of retaliation against an employee for having invoked his/her leave rights.
What are the consequences for an employer’s violation of the employee’s leave rights under the NJ SAFE ACT? An employer who violates the act may be subject to a fine of $1,000 to $2,000 for a first offense, and $5,000 for each subsequent offense. In addition, employees have up to one year to file a civil suit seeking a full array of remedies, including reinstatement, lost wages and benefits, punitive damages and attorney fees.
Are there employer notification requirements? Yes. Employers must conspicuously display a notice of the rights and responsibilities under the NJ Safe Act in a form and manner to be prescribed by the Commissioner of Labor and Workforce Development. If the Commissioner fails to issue the notice requirements by the effective date of the act, October 1, 2013, employers should prepare their own posting and distribute it to all employees.
How else will this new law impact my business? As with any new law, how businesses are affected by these new leave requirements remains to be seen. At a minimum, employers will face added operational and administrative burdens administering yet another leave program. In addition, employers can expect to face increased risk of litigation by employees claiming leave rights were denied to them or that they were subject to retaliation for having invoked NJ SAFE ACT leave rights.
* However, in this circumstance the employer would have to assess whether the leave was nonetheless required as a form of reasonable accommodation required under state and federal disability discrimination laws, a subject that is beyond the scope of this article.