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Significant Changes Made to New Jersey’s Leave Laws

By on April 4, 2019 in Legislation with 0 Comments

Governor Murphy ran on an election platform promising a number of pro employee changes to New Jersey’s employment laws. As employers already know, one such change was the passage of New Jersey’s Paid Sick Time Law that went into effect in late October 2018. Continuing that trend, additional legislation was passed and signed into law in February modifying three of New Jersey’s major employee leave laws. These recently enacted amendments significantly expanded New Jersey’s existing Family Leave Act (NJFLA) and Family Leave Insurance law (NJFLI). The important changes made to each of these laws are summarized below.

NJFLA

            Currently, the NJFLA applies to employers with 50 or more employees. The recent amendment changes that employee threshold and reduces it to just 30 employees. Thus, starting on June 30, 2019, employers with 30 or more employees (in total, anywhere, not just in New Jersey, but combined company wide) are required to provide those employees working in New Jersey with 12 weeks of job-protected family leave during each 24-month period. Moving forward, for employers in New Jersey, 50 employees will no longer be the magic number as it is under the federal Family and Medical Leave Act (FMLA), which means that more New Jersey employers will have to provide family leave beyond those previously covered with the higher employee threshold.

            The amendments also expand the scope of persons for whom family leave may be taken. The revisions modify the NJFLA to provide that family leave may be taken in connection with the placement of a child into foster care with the employee, not just as now upon the birth or adoption of a child. This change makes the NJFLA and the FMLA consistent with one another in allowing for leave for placement of a foster child. These amendments also expressly permit family leave to be be taken in connection with the birth of a child conceived using a gestational carrier agreement/surrogate.

           One of the cornerstone rights bestowed upon employees under the NJFLA is the ability to take NJFLA leave to care for a family member with a serious health condition. The recent legal changes passed expand the definition of “family member” to include “parent-in-law,” “sibling,” “grandparent,” and “any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.” Some of the above relationships were already previously included in the applicable regulations for the NJFLA, but not in the law itself; others are newly recognized relationships.  Nevertheless, employers now need to be cognizant of the added number of family members that could justify NJFLA eligibility.

            The recent amendments also significantly modify the circumstances for which intermittent leave can be utilized. Previously, intermittent leave to care for a child born or adopted was subject to the employer’s approval. The amended law now permits employees to use intermittent leave upon the birth, adoption or foster care placement of a child without the employer’s approval. This means that the old rule that employees had to take such leave on a consecutive basis (unless the employer agreed to allow the use of intermittent leave) is no longer applicable.

            The final significant change made to the NJFLA is that the advance notice requirement for taking a leave has been reduced from 30 to 15 days when an employee requests intermittent leave to care for a family member with a serious health condition. For other leave requests, the 30 days’ advance notice requirement remains the standard.

NJFLI

            The NJFLI provides wage replacement benefits to employees on family leave through the state’s temporary disability leave benefits program. Starting in July 2020, the following significant changes will go into effect:

            Initially, the number of weeks of paid leave benefits will be doubled from 6 to 12 within a 12-month period. The amount of intermittent paid leave benefits is also being increased from 42 to 56 days in a 12-month period, and intermittent leave may similarly now be used in the case of foster care child placement. The law as it currently stands allows intermittent leave only in order to care for a newborn or an adopted child.

            The revisions to the NJFLI also raise the cap on the weekly benefit amount to be received by an eligible employee from two-thirds to 85 percent of an employee’s weekly salary, to a maximum of 70 percent (up from 53 percent) of the statewide weekly remuneration average. That means under current state statistics the weekly maximum benefit will increase from $633 per week to $859 per week in 2020.

            Next, the recent amendments also will prohibit employers from requiring employees to use up to two weeks of paid time off (PTO) in lieu of NJFLI benefits. While employers in the future will no longer be able to force use of existing PTO time, the revised law still allows employees to elect to use PTO in lieu of NJFLI benefits. Furthermore, when an employee elects to use PTO benefits, it will no longer result in a reduction of the amount of NJFLI benefits available to that employee. So, in essence, employees will now be able to “double-dip” into such benefits, which was the primary reason for allowing the set-off in the current form of the law.

            Along with the foregoing changes, the recent amendment to the law likewise modifies the requirements applicable to employers who provide NJFLI (and temporary disability) benefits through a private plan by limiting the requirement that a majority of employees approve the use of a contributory private plan to employees covered by a collective bargaining agreement. The amended law further eliminates the seven-day waiting period for NJFLI benefits. Currently, employees do not receive benefits for the first seven days of family leave, unless benefits continued for more than three weeks, in which case the initial seven days were to be paid retroactively. The present amendment eliminates the seven-day waiting period altogether for NJFLI benefits.

            In addition to the substantive changes made to the benefits related payment provisions of the law, the latest amendments also prohibit an employer’s discharge, harassment, or any other conduct interfering with the terms and conditions of employment because an employee has requested or took family leave. The employer also may not refuse to restore an employee after a period of taken family leave. This is a significant change as before only if the leave itself was covered by another law which protected employment would job restoration be required.  Significantly, the law now also gives a private right of action to the employee with a host of potential remedies, including monetary damages, attorneys’ fees and costs, and injunctive and reinstatement relief to his or her former position. The law likewise outlines a schedule of fines that can be imposed by a court for violation of the anti-retaliation provision.

SAFE Act

            Finally, the recent amendments also similarly made changes to the New Jersey Security and Financial Empowerment (SAFE) Act, a law which provides leave for employees who are victims of domestic violence or sexual assault, or who have a family member who is a victim. Effective July 1, 2020, employees taking leave under the SAFE Act will be eligible for wage replacement benefits from the state, just like employees who take NJFLA leave.

            The amendment also expands the definition of “family member” under the SAFE Act, enlarging those who are covered by that law to now mirror the term’s definition under the NJFLA. This means that like the NJFLA “family member” under the NJ SAFE Act will now include a “parent-in-law,” “sibling,” “grandparent,” and “any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.”

Conclusion

In light of the foregoing changes, the time is now for employers to revisit their leave policies, and make all changes needed to bring these policies in line with (1) the amendments themselves, and (2) any new regulatory requirements that these amendments may beget. Moreover, with the addition of the new paid sick time law, coordination of benefits under these respective benefits will be a must for employers, and sound legal advice should be sought to ensure compliance with the complicated web of requirements that these laws will now demand.

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Ralph R. Smith, III, Esq.

About the Author

About the Author:

Mr. Smith is Co-Chair of Capehart Scatchard's Labor & Employment Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitrations, drug testing, and employment related contract issues.

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