New Jersey Expands Employee Family and Safe Leave Benefits

Q:        I heard there are some recent changes to New Jersey’s laws regarding employee leave benefits.  Will they affect my company’s employment policies?

A:        On February 19, 2019, New Jersey Governor Phil Murphy signed legislation that amends and expands some of the state’s leave laws, including the Family Leave and SAFE Acts, as well as available benefits under New Jersey Family Leave Insurance.  Some of the changes are effective immediately, while others will take effect at a later date. Below are some of the key changes resulting from the recent amendment.

The New Jersey Family Leave Act

The New Jersey Family Leave Act (NJFLA) currently requires employers with 50 or more employees (counting those employed both in and outside New Jersey) to provide their New Jersey employees with up to 12 weeks of employment-protected leave in a 24-month period to care for a family member (which includes a parent, parent-in-law, minor or disabled child, spouse, or civil union partner) with a serious health condition, or to bond with a newly born or adopted child.

While the NJFLA currently applies to employers with 50 or more employees, the recent amendment reduces the employer size threshold to 30 employees. Therefore, beginning on June 30, 2019, employers with 30 or more employees (counting those employed both in and outside New Jersey) are required to provide those employees working in New Jersey with 12 weeks of employment-protected family leave during each 24-month period.

There are other new provisions to the NJFLA, which went into effect immediately:

  • In addition to the previously identified family members (parent, parent-in-law, minor or disabled child, spouse, or civil union partner), employees may now take leave to care for: a child regardless of age; a sibling; a grandparent; a grandchild; a parent-in-law; a foster parent; any individual related by blood; or any other individual with a close association equivalent to a family relationship.
  • Employees are permitted to take leave for bonding with a newborn child conceived through a gestational carrier agreement, or with a newly placed foster child.
  • Employees are permitted to take leave for bonding on an intermittent basis without employer consent.
  • Leave may be taken intermittently over a period of 12 consecutive months (up from 24 consecutive weeks).
  • Except for continuous bonding leave (which still requires 30 days advance notice), leave may be taken on only 15 days of advance notice.

Note that the changes to the NJFLA did not broaden the law to provide for leave for an employee’s own serious health condition. Employees who are eligible for federal Family and Medical leave may take leave for their own serious health condition. In the case of pregnancy, the interplay of the two laws often results in up to 12 weeks of leave for the employee’s own serious health condition due to pregnancy and childbirth, followed by an additional leave up to 12 weeks under the NJFLA for bonding with the newborn baby.

Family Leave Insurance Benefits

New Jersey Family Leave Insurance (“NJFLI”) provides partial wage replacement benefits to employees on family leave through New Jersey’s temporary disability leave benefits program.

NJFLI now includes an expansive anti-retaliation provision that prohibits an employer from discharging or otherwise discriminating or retaliating against an employee because the employee requested or took temporary disability benefits or family temporary disability leave benefits, including “retaliation by refusing to restore the employee following a period of leave.” The amendment provides a private right of action to the employee, which includes various remedies, such as monetary damages, attorneys’ fees and costs, and injunctive relief and reinstatement to his or her former position. Thus, the NJFLI in effect works as a job-protection statute by requiring employers to restore the employee to his or her job at the end of temporary disability leave.

Beginning on July 1, 2020, a number of additional changes will become effective:

  • The amendment raises the amount of the weekly benefit total from two-thirds (currently capped at $650 per week) to 85% percent of an employee’s weekly salary (to a maximum of $860).
  • The benefit period will be increased from 6 weeks to 12 weeks during a 12-month period.
  • The amount of intermittent paid leave benefits will also increase from 42 to 56 days during a 12-month period.

The NJ SAFE Act

The New Jersey Security and Financial Empowerment (“SAFE”) Act provides leave for employees who are victims of domestic violence or sexual assault, or 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. Employees can elect to use accrued paid leave, including paid sick leave, or NJFLI benefits while on SAFE Act leave, and such leave would run concurrently with SAFE Act leave. In addition, employers can no longer require employees to use existing paid time off, vacation, or other similar employer-paid benefits for SAFE Act purposes.

The amendment also expands the definition of “family member” under the SAFE Act to mirror the definition under the NJFLA. Eligible “family members” now includes 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.”

Implications

Many of the amendment provisions are effective immediately or within the next few months. Consequently, covered employers should review their policies to ensure compliance with the amendments. Once issued by the New Jersey Department of Labor and Workforce Development, covered employers should update their NJFLA and NJFLI posters and notices. In addition, it is important to train your human resources staff and inform and update the appropriate management employees about the new legal provisions.

For assistance in ensuring that your policies comply with these amendments, we recommend consulting with labor and employment counsel.

–Leigh McMonigle