Paid Leave and Coronavirus—Part XII: More New Jersey COVID-Related Paid Leave Amendments, Including School Closure Leave, Signed into Law

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Seyfarth Synopsis: New Jersey extends its Family Leave Act, disability and paid family leave laws by offering leave to employees to care for a family member in the event of an epidemic of a communicable disease, or in connection with efforts to prevent the spread of a communicable disease.

On Tuesday, April 14, 2020, New Jersey Governor Murphy signed S2374 into law, thereby expanding New Jersey’s Family Leave Act to include leave from employment “made necessary 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.” The amendments permit employees to take leave to care for a child due to the closure of the child’s school or place of care or to care for a family member in connection with COVID-19 or similar illness for up to 12 weeks of unpaid job-protected leave in a 24-month period.

The law also makes technical corrections to the Temporary Disability and Family Leave Insurance Laws, as well as the recently enacted leave protections triggered by the declaration of a state of emergency (S2304). We previously reported on S2304 here. Due to the technical corrections, the amendments in S2374 are effective retroactively to March 25, 2020.

The new law changes the existing legal landscape in New Jersey by:

Expanding permissible uses of family leave. The new law permits employees to take family leave where the Governor, Commissioner of Health or other public health authority indicates a state of emergency is needed due to “an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease,” which:

• (a) requires in-home care or treatment of an employee’s child due to the closure of public school or place of care, “by order of a public official due to the epidemic or other public health emergency;”
• (b) prompts a public health authority to require or impose, including by mandatory quarantine, “responsive or prophylactic measures as a result of illness caused by an epidemic of a communicable disease or known or suspected exposure to the communicable disease because the presence in the community of a family member in need of the employee’s care, would jeopardize the health of others;” or
• (c) results in a health care provider or public health authority recommending that a family member in need of the employee’s care voluntarily self-quarantine “as a result of suspected exposure to a communicable disease because the presence in the community of that family member, would jeopardize the health of others.”

The amendment deleted similar provisions in S2304, which linked these reasons for use to a “serious health condition,” and also added school/place of care closures as a reason for use under the law.

Elaborating on the certification provision of the Family Leave Act. Where an employee requests leave “for an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease,” an employer may require the employee to support their request with a “certification issued by a school, place of care for children, public health authority, public official, or health care provider.” The certification is sufficient if it includes –

• For leave taken to due to closure of the employee’s child’s school or place of child care – the date on which the closure began and the reason for such closure;
• For leave taken because a public health authority requires or imposes “responsive or prophylactic measures as a result of illness caused by an epidemic” or “known or suspected exposure to the communicable disease because the presence in the community of a family member in need of care by the employee would jeopardize the health of others” – the date the public health authority issued the determination and the anticipated duration of the determination; or
• For leave taken because of a recommendation that a family member in need of the employee’s care voluntarily self-quarantine – the date of the recommendation, the likely duration of the condition, and the medical or other facts regarding the condition known to the health care provider or public health authority.

Limiting an employer’s right to deny family leave to highly compensated employees. The Family Leave Act provisions permitting an employer to deny family leave to highly compensated employees do not apply in a state of emergency declared by the Governor or when the Commissioner of Health or other public health authority indicates one is needed, and the family leave is “for an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease,” revising the limitations on this exception previously enacted in S2304.

Permitting intermittent leave. Under the Family Leave Act, intermittent leave is permitted if “taken due to an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of the communicable disease,” if the covered individual (1) notifies the employer of the leave as soon as practicable; and (2) “makes a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer and, if possible, provide the employer, prior to the commencement of the intermittent leave, with a regular schedule of the day or days of the week on which the intermittent leave will be taken.”

Narrowing the definition of a “serious health condition.” An additional technical correction to the Family Leave Act, Family Leave Insurance Law (“FLI”), and Temporary Disability Insurance (“TDI”) Law, removes the inclusion of an illness similar to COVID-19 in the definition of a “serious health condition.”

The technical correction specifically defines “disability,” for purposes of TDI to permit an employee to take leave where the Governor has declared a state of emergency or when the Commissioner of Health or other public health authority indicates one is needed, to include an “illness caused by an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of the communicable disease, which requires in-home care or treatment 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 the employee may jeopardize the health of others; and (2) the recommendation, direction, or order of the provider or authority that the employee be isolated or quarantined as a result of suspected exposure to a communicable disease.”

Expanding FLI. The amendments expand FLI to cover leave taken where the Governor declares a state of emergency or when the Commissioner of Health or other public health authority indicates one is needed, “an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of the communicable disease, provide in-home care or treatment of the family member of the employee required due to: (i) the issuance by a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of the family member may jeopardize the health of others; and (ii) the recommendation, direction, or order of the provider or authority that the family member be isolated or quarantined as a result of suspected exposure to a communicable disease.”

Providing that TDI benefits are payable on the first day of a “compensable disability.” The amendments waive the 7-day waiting period during 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 due to: (1) the issuance of a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of the employee may jeopardize the health of others; and (2) the recommendation, direction, or order of the provider or authority that the employee be isolated or quarantined as a result of suspected exposure to a communicable disease.”

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 paid family leave, disability and other leave policies, and assess the potential effect of the amendments on those policies.

With the paid leave landscape continuing to rapidly expand and grow in complexity, we encourage companies to reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with paid leave requirements. 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.