In the Wake of the COVID-19 Pandemic, New Jersey Expands Employee Leave Entitlements

Overview

On March 25, 2020, New Jersey Governor Phil Murphy signed S2304, amending the New Jersey Earned Sick Leave Law, the New Jersey Family Leave Act (“FLA”), and the New Jersey Temporary Disability Benefits Law (“TDL”). The amendments expand an employee’s ability to take leave and collect temporary disability benefits during epidemic-related emergencies.

The new law broadens an employee’s ability to use earned sick leave to include leave due to school and work closures; isolation and quarantine orders because of exposure or suspected exposure to a communicable disease; and when the employee’s presence (or the presence of a family member under the employee’s care) in the community would jeopardize the health of others. In addition, the new law expands the definition of a “serious health condition” under the FLA and TDL during epidemic-related emergencies to include exposure to communicable disease requiring in-home care for the employee and employee’s family member who is under an isolation or quarantine order. Finally, the new law makes paid temporary disability benefits available without a waiting period under certain circumstances to an employee who takes leave for epidemic-related reasons.

Earned Sick Leave

The amendment to the Earned Sick Leave Act expands an employee’s entitlement to use his/her paid sick leave when the employee cannot work due to: (1) the closure of the employee’s workplace or the closure of the employee’s child’s school or place of care due to a state of emergency declared by the Governor; (2) the determination by a health care provider that the employee’s presence in the community (or a member of the employee’s family in need of care by the employee) would jeopardize the health of others; and (3) the instruction by a healthcare provider, public health authority, or the Governor under a state of emergency that the employee undergo isolation or quarantine, or care for a family member in quarantine.

These additional permitted uses supplement and do not replace the existing circumstances for which employers must already allow employees to use accrued sick leave

Family Leave

The FLA affords qualifying employees up to 12 weeks of family leave in a 24-month period for the birth or adoption of a child, or to care for a family member with a “serious health condition.”

The new law expands the existing FLA to include additional forms of job-protected leave for employees caring for family members affected by COVID-19. Specifically, the law provides that during a state of emergency or when indicated by a public health authority, the definition of a “serious health condition” includes illness due to an epidemic of a communicable disease, known or suspected exposure to a communicable disease, or efforts to prevent the spread of a communicable disease, which requires in-home care or treatment of a family member of the employee. Further, to satisfy this new definition, the law requires that a healthcare provider or public health authority determines that the family member’s presence in the community may jeopardize the health of others, and recommends, directs, or orders that the family member be isolated or quarantined.

The new law also prohibits employers from denying family leave when the leave is due to an isolation or quarantine order. When the request for family leave is not due to epidemic-related isolation, quarantine, or closure, employers may still deny leave requests under the existing exemption when the employee is among the highest paid employees and the denial is necessary to prevent substantial and grievous economic injury to the employer.

Temporary Disability Benefits Law

The TDL provides temporary insurance benefits to replace some of an employee’s lost wages during qualifying circumstances. Benefits may include Temporary Disability Insurance (“TDI”) when the employee’s non-work related illness or injury prevents the employee from going to work. Benefits are also available under Family Leave Insurance (“FLI”) when an employee takes leave in order to care for a family member with a serious health condition, or to bond with a newborn or adopted child.

The new law expands the scope of compensable leave under both branches of the TDL, making temporary insurance benefits available to employees who must isolate or quarantine, and to employees who must care for a family member who is quarantined.

Specifically, the new law both incorporates the Family Leave Act’s amended definition of a “serious health condition” so that during a state of emergency declared by the Governor or as indicated by a public health authority, a “serious health condition” includes known or suspected exposure to communicable disease which results in an order to quarantine or isolate. The TDL expands the definition by including an employee’s own need to quarantine or isolate, thereby making lost wage insurance benefits available for the employee’s own illness.

Moreover, these new circumstances now constitute a “sickness” for which an employee may be compensated under the TDL – for an employee’s own sickness or for the employee’s family member’s sickness. The expansion of the definition of “sickness” applies during a state of emergency declared by the Governor or when indicated by a public health official.

The new law also eliminates the 7-day waiting period when leave is taken for one of the indicated epidemic-related reasons.

Bottom Line

These expansions of protections to employees come hot on of the heels of the state’s March 20, 2020, enactment of A3848, a new law which prohibits an employer from terminating or otherwise penalizing an employee who requests to take time off or takes time off at the recommendation of a medical professional, due to COVID-19. Likewise, New Jersey employers must also comply with the Federal Families First Coronavirus Response Act, which provides protected sick leave and family leave for employees affected by COVID-19.

State and federal governments have taken these sweeping actions in a direct effort to curb the effects of the novel COVID-19 pandemic. While these efforts are calculated to save lives, they have undoubtedly created a confounding matrix in which businesses must operate. This tidal wave of regulation has forced employers to face unprecedented financial, operational, and legal quandaries. With the seemingly unending imposition of governmental directives that directly impact businesses, it is imperative, now more than ever, that employers stay informed regarding the laws and mandates that affect their businesses.

To explore strategies on how your business can navigate the new legal changes surrounding COVID-19, please contact Jennifer Roselle, Esq., Counsel in the firm’s Labor and Human Resources Counseling and Compliance Practice Groups at jroselle@genovaburns.com or Katherine E. Stuart, Esq., Associate in the firm’s Employment Law & Litigation Practice Group and Human Resources Counseling and Compliance Practice Group at kstuart@genovaburns.com