New Jersey Expands Earned Sick Leave and Family Leave in Light of the COVID-19 Pandemic

New Jersey Expands Earned Sick Leave and Family Leave in Light of the COVID-19 Pandemic
On March 25, Governor Phil Murphy signed Bill S2304 into law, which expanded the New Jersey Earned Sick Leave Law (“ESLL”), the New Jersey Family Leave Act (“NJFLA”), and New Jersey’s Temporary Disability Benefits Law (“NJTDBL”) in order to provide more New Jersey workers with expanded access to paid leave benefits and unpaid family leave during this recent public health emergency.
 
“No one should have to decide between taking care of themselves or a sick family member and going to work during this pandemic,” said Governor Murphy. “With this new law, we are providing hardworking men and women with the protections that they deserve and ensuring a healthier place to live and work.”
Pursuant to S2304, the permanent amendments went into effect immediately upon signing, so all employers must be aware of the changes to ensure both understanding and compliance. 
 
Expanded Earned Sick Leave under the ESLL

First, S2304 expands the ESLL. Previous to the passage of S2304, New Jersey employees eligible for earned sick leave could earn one (1) hour of paid sick leave for every thirty (30) hours worked—or forty (40) hours in a calendar year for most full-time employees—for only the following reasons:
 
  • Employee’s Mental/Physical Illness: the employee’s diagnosis, care, treatment, or recovery for a mental or physical illness, injury, or health condition, including the employee’s preventive medical care;
  • Family Member’s Mental/Physical Illness: The employee’s need to care for a family member during that family member’s diagnosis, care, treatment, or recovery for a mental or physical illness, injury, or health condition, or for the employee to care for a family member who needs preventive medical care;
  • Victim of Domestic/Sexual Violence: If the employee or the employee’s family member have been the victim of domestic violence or sexual violence and need time for treatment, counseling, or to prepare for legal proceedings;
  • School-Related Parental/Guardian Attendance: If the employee needs to attend school-related conferences, meetings, or events regarding their child’s education, or to attend a school-related meeting regarding their child’s health; or
  • Public Health Emergency: Closure of the employee’s workplace due to a public health emergency, or the employee needs to care for a child whose school or child care provider closed due to a public health emergency.

The new law expands the ESLL to permit the use of earned sick time for the following reasons:
 
  • Closure of the employee’s workplace, or the school or place of care of the employee’s child, because of the Governor’s declaration of a state of emergency;
  • The Governor’s declaration of a state of emergency or the issuance by a health care provider or the Commissioner of Health or other public health authority, that the employee’s presence in community, or that of a member of the employee’s family in need of care by them, would jeopardize the health of others; or
  • During a state of emergency declared by the Governor, or upon the recommendation, direction, or order of a healthcare provider or 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 that the individual/family member’s presence in the community would jeopardize the health of others.

The amendments to the ESLL make it clear that employees who are subject to quarantine, even if they do not personally have COVID-19, are entitled to use earned sick time under the ESLL.
 
By way of reminder, the ESLL has broad applicability because it expansively defines "family member" to include any individual related by blood to the employee or whose close association with the employee is the “equivalent of a family relationship.”
 
Changes to the NJFLA

Generally, the NJFLA allows qualifying employees of covered employers to take up to twelve (12) weeks of unpaid family leave in a 24-month period in order to care for or bond with a child within twelve (12) months of the child’s birth or placement by adoption or foster care, or to care for a family member with a serious health condition. 
 
S2304 broadens the NJFLA’s definition of a “serious health condition” to include “an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of a family member of the employee 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 a family member may jeopardize the health of others; and (2) the recommendation, direction, or order of the provider or authority that the family member be isolated or quarantined because of suspected exposure to the communicable disease.”
 
Existing provisions in the NJFLA allowing employers to deny family leave in certain scenarios—i.e. to salaried employees who are among the highest paid 5% of the employer's employees or where doing so is necessary to prevent substantial and grievous economic injury—do not apply when the need for leave is due to the need for isolation or quarantine during an epidemic. More specifically, under the NJFLA, an employer may not deny family leave to an employee if the leave is due to a health care provider, the Commissioner of Health, or other authorized public official having ordered, directed, or recommended that a family member of the employee in need of care by the employee be isolated or quarantined, or is due to a place of care of a member of the employee’s family being closed because of a state of emergency declared by the Governor or order of the Commissioner of Health or other authorized public official, during an epidemic of a communicable disease, or a known or suspected exposure to a communicable disease.
 
Expansion of the NJTDBL 
 
Subject to certain caps, the NJTDBL provides wage replacement for qualifying New Jersey employees, which are funded by employee payroll deductions. S2304 has modified the NJTDBL by amending the definition of what constitutes a “compensable disability” to now include “leave to care for family members suffering from accident or sickness,” and has clarified that “sickness” is defined similarly to “serious health condition” under the FLA.
 
Under the newly-amended NJTDBL, the definition of what constitutes a “serious health condition” is nearly identical to the new definition of “serious health condition” under the NJFLA, except that it encompasses in-home care or treatment of the employee or a family member of the employee.  Stated differently, the NJTDBL also covers the employee’s own in-home care or treatment because of a qualifying determination that the employee’s presence in the community may jeopardize the health of others, or a qualifying recommendation, direction, or order that the employee be isolated or quarantined.
 
Importantly, S2304 eliminates the seven-day waiting period for benefits eligibility when benefits are sought related to an employee’s own serious health condition if it falls within the newly expanded definition of “sickness” described above.  For example, employees who are suffering from COVID-19/the Coronavirus and receiving in-home care or treatment for the same are not held to the seven-day waiting period.
  
As we have previously advised, the waiting period for Family Leave Insurance (“FLI”) benefits was already eliminated as a result of 2019 amendments to the law.  
 
Takeaways for Employers

The recent pandemic has presented a host of challenges for everyone, including employers, as State and Federal laws experience sweeping and immediate changes.  At this time, Laddey, Clark & Ryan, LLP recommends that employers review their existing policies to ensure compliance with the amendments discussed above and consider updating those policies so they are in line with the recent changes to New Jersey’s leave and benefits laws.  
If you have further questions regarding S2304 and the resulting amendments to the ESLL, NJFLA, and NJTDBL, or if you would like to have any of your existing policies reviewed and modified, please do not hesitate to contact Laddey, Clark & Ryan’s Employment and Labor Practice Group:
 


Our attorneys can also be reached at: 973-729-1880
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