On April 14, 2020, Governor Murphy signed legislation amending the New Jersey Family Leave Act and the Temporary Disability Benefits Law to expand an employee’s permissible reasons to take leave and to receive benefits due to COVID-19.  This law, S2374, builds upon and revises some of the previous amendments made by S2304, enacted three weeks ago on March 25, 2020. 

While the bill was signed on April 14, 2020, it has a retroactive effective date of March 25, 2020. At the current time, it is unclear how the state plans to enforce the retroactive effective date for leave purposes.  It is anticipated that the retroactive effect will predominantly impact the family leave insurance and temporary disability insurance provisions, which will allow employees to receive benefits from the state going back to March 25.

Expanded Qualifying Reasons Under the New Jersey Family Leave Act (NJFLA)¹

Under the amendments, employees will now qualify for protected leave (up to 12 weeks in a 24-month period) under the NJFLA if, due to a state of emergency or when indicated by a public health official, an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease, requires the employee:

• To care for their child whose school or place of care is closed by order of a public official due to the epidemic or other public health emergency;

• To care for a family member that is subject to any declaration by a public health authority, including a mandatory quarantine order, as a result of illness caused by the communicable disease or known or suspected exposure to the communicable disease; or

• To care for a family member who, under the recommendation of a health care provider or public health authority, voluntarily self-quarantines as a result of suspected exposure to a communicable disease.

Additionally, the amendments eliminated the recently expanded definition of “serious health condition.”  Although the definition of “serious health condition” no longer includes the previously added COVID-19-related reasons, the above amendments result in employees’ being afforded similar protections.

Verification Requirements Under the NJFLA²

If employees needs leave during an epidemic of a communicable disease, or because they were exposed to or are suspected to have been exposed to the communicable disease, or are taking efforts to prevent spread of a communicable disease, the following certification (issued by a school, place of care for children, public health authority, public official, or health care provider) is sufficient for each of the below situations:

• When leave it taken to care for a child whose school or place of care is closed due to the order of a public official or other public health emergency, they must provide the date of the closure and the reason for the closure.

• When leave is taken to care for a family member who is subject to a mandatory quarantine order as a result of illness caused by the communicable disease or known or suspected exposure to the communicable disease, the employee must provide the date of the determination and the probable duration of the quarantine or other determination by a public health authority;

• When leave is taken to care for a family member who is voluntarily self-quarantining under recommendation of a healthcare provider as a result of suspected exposure to a communicable disease, the employee must provide the date of the recommendation, the probable duration of the quarantine, and the medical or other facts upon which the healthcare provider relied in making the recommendation.

Notably, the amendments seem to require only an employee to provide certain information and self-verify the need for use, and do not reference any documentation from a third party.

The NJFLA’s provisions allowing employers to deny family leave to key employees under certain conditions do not apply to employees taking leave for the above reasons. 

Employees may take leave for the above reasons on an intermittent basis provided the following conditions are met:³

• The employee provides prior notice as soon as practicable;

• The employee makes reasonable efforts not to unduly disrupt operations of the employer; and

• If possible, the employee provides the employer with a regular schedule of the day or days of the week on which leave will be taken prior to the commencement of the leave.

Expanded Definitions Under the New Jersey Temporary Disability Benefits Law (NJTDBL)

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, a “disability” shall 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:
  
  • the issuance by a healthcare provider or the commissioner or other public health authority of a determination that the employee’s presence in the community may jeopardize the health of others; and
  • 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.

The definition of “family temporary disability leave” is also amended to include the need to provide in-home care or treatment of a family member under these circumstances. 

Additional Noteworthy Revisions to the NJTDBL

Building upon the previous amendments during a governor-declared state of emergency, or when indicated to be needed by the commissioner of health or other public health authority, a “compensable disability” now has the same definition as “disability” noted above.  As a result, employees taking time off (a) to care for another under the NJFLA or (b) due to their own disability in connection to COVID-19, may be entitled to receive partial wage replacement through either the state or an employer’s private plan. 

Given the ever-changing landscape of New Jersey leave laws, employers are advised to seek counsel to assist in evaluating current policies and assessing how New Jersey’s leave laws will operate in relation to the recently passed federal legislation on COVID-19-related leaves of absence.