On February 19, 2019, New Jersey Governor Phil Murphy signed into law legislation that amends and significantly expands New Jersey’s Family Leave Act (NJFLA), Temporary Disability Benefits Law, and the Security and Financial Empowerment (NJ SAFE) Act. Some of the changes are effective immediately, while others will take effect at a later date. Below are some of the highlights from the recent amendment.
The NJFLA currently applies to employers with 50 or more employees, which is consistent with the federal Family and Medical Leave Act. On June 30, 2019, however, the NJFLA will apply to employers with 30 or more employees anywhere. Accordingly, starting on June 30, 2019, New Jersey employers with 30 or more employees will be required to provide employees working in New Jersey with 12 weeks of job-protected leave for the birth, foster care placement or adoption of a child or to care for the employee’s family member with a serious health condition during a 24-month period.
The amended NJFLA also expands the definition of “family member” to permit leave to care for a “parent-in-law,” “sibling,” “grandparent,” “domestic partners,” “any other individuals 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. The amendment is effective immediately. The expanded definition of “family member” under the NJFLA is broader than what is permitted under the FMLA, and now aligns with the definition of “family member” under New Jersey’s Earned Sick Leave Law.
In addition, the amendment expands the definitions of “parent” and “family leave” to include foster parents, and individuals who become parents through a gestational carrier. This is also effective immediately.
Further, employees can now take intermittent leave upon the birth, adoption or foster care placements of a child without an employer’s approval. Prior to the amendment, employees had to take such leave on a consecutive basis unless the employer agreed to allow the use of intermittent leave.
New Jersey provides partial wage replacement benefits (NJFLI) to employees on family leave through New Jersey’s temporary disability leave benefits program. Beginning on July 1, 2020, a significant number of changes will become effective.
First, the amendment raises the amount of the weekly benefit total from 66 percent to 85 percent of an employee’s weekly salary, to a maximum of 70 percent of the statewide average weekly wage.
Second, 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.
Third, the amendment restricts employers from requiring employees to use up to two weeks of paid time off in lieu of NJFLI benefits. Employees, however, can still elect to use paid time off instead of NJFLI benefits. In addition, when an employee decides to use paid time off benefits, the amount of NJFLI benefits available to such employee will no longer be reduced.
Finally, the amendment includes an anti-retaliation provision that prohibits employers from discharging, harassing, threatening, or otherwise discriminating or retaliating against an employee who requests benefits under the NJFLI. In addition, employers may not refuse to restore the employee following a period of receiving NJFLI benefits. Further, employees can now bring a private right of action, which includes such remedies as: reinstatement to the same or equivalent position the employee held before discharge, reinstatement of full fringe benefits and seniority rights, compensation for any lost wages, benefits and other remuneration, and reasonable costs and attorneys’ fees.
NJ SAFE Act
The NJ SAFE Act provides eligible employees with 20 days of protected unpaid leave to attend a variety of matters related to an act of domestic violence or sexual assault committed against an employee or a family or household member. To be eligible for protection under the NJ SAFE Act, an individual must be employed for at least 12 months and for at least 1,000 base hours during the immediately preceding 12-month period. The NJ SAFE Act applies to employers with 25 or more employees.
Beginning on July 1, 2020, employees who take leave under the NJ SAFE Act will be eligible for partial wage replacement benefits from the state, similar to employees who take NJFLA leave. Employees can elect to use accrued paid leave, including paid sick leave, or NJFLI benefits while on NJ SAFE Act leave, and such leave would run concurrently with NJ 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 NJ SAFE Act purposes. Prior to the amendment, employers had the option of requiring employees to use such benefits for NJ SAFE Act purposes.
The amendment also expands the definition of “family member” under the NJ SAFE Act to mirror its definition under the NJFLA and New Jersey Earned Sick Leave Law, which as discussed above, now includes “parent-in-law,” “sibling,” “grandparent,” “domestic partners,” “any other individuals 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.
Next Steps for Employers
Small businesses that employ approximately 30 or more employees will be subject to the NJFLA beginning June 30, 2019. Therefore, covered employers should update their handbooks as well as standalone leave policies and procedures to ensure compliance. In addition, employers should train human resources and managers about the law’s entitlements, including the broad definition of “family member” and the anti-retaliation provisions.