Paid Leave and Coronavirus—Part IX: Amendments to New Jersey Leave Laws for COVID-19 Reasons Signed into Law

Seyfarth Synopsis: On March 25, Governor Phil Murphy of New Jersey signed into law expansive leave protections, mainly triggered by the declaration of a state of emergency, under the Earned Sick Time, Family Leave, Family Leave Insurance, and Temporary Disability Benefits laws.

 The New Jersey Senate called an emergency session on March 19, 2020, in order to vote on several pieces of legislation, including S2304, which amends the Earned Sick Leave, Family Leave, and Temporary Disability Laws. This week, the Assembly conducted its first ever remote voting session on March 25 to approve the bill. The same day, Governor Murphy signed the bill into law. The amendments are effective immediately.

This law is more expansive than neighboring New York’s COVID-19 sick leave measure, which appears to only provide leave in the event of an order issued by the state of New York, the department of health, local board of health, or other authorized government entity of a “mandatory or precautionary quarantine or isolation.” (See our prior alerts on the law here and subsequent update here.)

Earned Sick Leave

S2304 amends the Earned Sick Leave Law to expand reasons for use as follows.

(1) The existing law permitted employees to use earned sick leave in the event of a closure of an employee’s workplace, school, or child care facility by order of a public official due to an epidemic or other public health emergency. However, the amendment further indicates that sick leave may be taken “because of a state of emergency declared by the Governor” in connection with an epidemic or other public health emergency.

(2) Another existing reason for use of Earned Sick Leave was expanded. The law now allows an employee to take leave when the employee is not able to work because of “the declaration of a state of emergency by the Governor,” or a determination by “a health care provider or the Commissioner of Health or other public health authority”  that the employee’s presence in the community, or the presence of a member of the employee’s family in need of care by the employee, would “jeopardize the health of others.”

(3) An entirely new reason for use of earned sick leave is tacked on, concerning a period of quarantine. Now, sick leave may also be taken if, “during a state of emergency declared by the Governor, or upon the recommendation, direction, or order of a healthcare provider or the Commissioner of Health or other 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 by the provider or authority that the presence in the community of the employee or family member would jeopardize the health of others.”

Governor Murphy declared a state of emergency in New Jersey on March 9, 2020 in Executive Order 103. By virtue of this Order, an employee may use Earned Sick Leave under one of the above-listed expanded reasons for use if their absence from work resulted from the state of emergency, because of a closure, or actual or suspected infection. As we previously reported, Governor Murphy issued a “Stay at Home” Order on March 21, closing non-essential businesses and only permitting individuals to leave their homes for specified reasons.

Family Leave Act

The New Jersey Family Leave Act (“NJFLA”) which provides unpaid, job protected leave in the event an employee needs to care for a family member with a serious health condition (among other reasons for use), was also amended. This law applies to employers with 30 or more employees and provides 12 weeks of unpaid, job-protected leave in a 24-month period.

The definition of “serious health condition” was expanded as follows:

During a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, “serious health condition” shall also 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.

It therefore appears that an employee may receive a recommendation from either a healthcare provider or public health authority that a family member’s presence in the community may pose a risk to others, or due to suspected exposure, and receive job-protected leave.

The amendments also restrict an employer’s ability to exercise the highly compensated exception (which ordinarily allows leave to be denied to certain highly compensated individuals to prevent “substantial and grievous economic injury” to the company) where leave is taken:

(1) due to a recommendation by a healthcare provider or order by a public health official that a family member who the employee must care for is isolated or quarantined; or

(2) due to “a place of care” (e.g., daycare center) of an employee’s family member “being closed because of a state of emergency” or order of a public health official “during an epidemic of a communicable disease, or a known or suspected exposure to a communicable disease.”

Note the law already provided that in the event of a layoff or furlough for 90 days or less, the time during which an employee is laid off or furloughed “because of a state of emergency” will continue to count toward the employee’s eligibility.

Family Leave and Temporary Disability Insurance

New Jersey’s Family Leave Insurance (“FLI”) and Temporary Disability Insurance (“TDI”) programs were also amended as a part of this bill.

The definition of “serious health condition” was similarly expanded as in the NJFLA. Now, employees may receive benefits during a state of emergency, or when indicated by a public health official, in connection with “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 the employee or family member of the employee” as a result of:

(1) the issuance of a determination by a healthcare provider or public health authority that “the presence in the community of the employee or family member may jeopardize the health of others;” and

(2) the recommendation of the provider or authority that the employee or family member “be isolated or quarantined as a result of suspected exposure to a communicable disease.”

The amendments make clear that leave for which benefits may be paid includes “leave to care for family members suffering from accident or sickness;” and broaden the definition of “sickness” during a state of emergency, or when necessary as indicated by a public health authority, 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 the employee or family member of the employee” due to a determination or recommendation described above.

Notably, the bill eliminates the waiting period before receiving TDI benefits if for a “sickness” as defined above. (The waiting period for FLI benefits had already been eliminated as a result of 2019 amendments to the law.)

Among other measures, the Legislature recently passed a comprehensive unemployment program, which provides $10 million in funding for paid leave for employees who are affected by COVID-19, as well as reimbursements of up to $10,000,000 for employers who continue to pay employees while under quarantine. As of this writing, the Governor has not yet signed that bill, but we will continue tracking its progress.

Employer Takeaways:

In addition to consulting the text of the law, here are some steps for employers to consider:

• Consult Seyfarth’s COVID-19 Resource Center for updated information regarding the rapidly evolving COVID-19 situation and its impact on the workplace.
• Review existing workplace policies relating to a host of issues, including paid sick leave, paid family leave and other leave policies, and assess the potential effect of the New Jersey amendments on those policies.
• Consider issuing a separate policy addressing sick leave, paid family leave, and/or disability benefits for employees affected by COVID-19.
• Monitor updates in connection with the long-term paid sick leave proposal.

With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with the amendments to the New Jersey law and paid leave requirements generally. To stay up-to-date on COVID-19 developments, click here to sign up for our daily digest. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to sickleave@seyfarth.com.