On April 14, 2020, New Jersey enacted a series of new bills seeking to curb the impact of COVID-19 on its residents and employers, including laws amending New Jersey’s Family Leave Act (“NJFLA”) and mini-WARN Act (“NJWARN”).
Amendments to New Jersey’s Family Leave Act:
NJFLA provides for 12 weeks of unpaid leave during any 24-month period to eligible employees for various covered reasons. New Jersey employers with at least 30 employees are required to provide NJFLA leave. Employees are eligible for NJFLA if they have worked for a covered employer for at least one year and worked at least 1,000 hours during the prior 12 months.
Senate Bill S2374, enacted on April 14, 2020, expands covered reasons to use NJFLA to include need for leave “in the event of a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, 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”1:
- requires in-home care or treatment of a child due to the closure of the school or place of care of the child of the employee, by order of a public official due to the epidemic or other public health emergency;
- prompts the issuance by a public health authority of a determination, including by mandatory quarantine, requiring or imposing 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 care by the employee, would jeopardize the health of others; or
- results in the recommendation of a health care provider or public health authority, that a family member in need of care by the employee voluntarily undergo self-quarantine as a result of suspected exposure to a communicable disease because the presence in the community of that family member in need of care by the employee, would jeopardize the health of others.
Employers can require documentation be provided in support of a request for leave for the above reasons as follows:
- In cases of leave needed for childcare, certification must include “the date on which the closure of the school or place of care of the child of the employee commenced” along with “the reason for such closure”;
- In cases of leave needed to care for a family member who is subject to “a public health authority’s issuance of a determination requiring or imposing responsive or prophylactic measures as a result of” COVID-19, certification should include “the date of issuance of the determination and the probable duration of the determination”; and
- In cases of leave needed to care for a family member who is subject to “a health care provider or public health authority recommend[ation]” to “voluntarily undergo self-quarantine as a result of suspected exposure to” COVID-19, certification from the health care provider or public health authority should include, “the date of the recommendation, the probable duration of the condition, and the medical or other facts within the health care provider or public health authority’s knowledge regarding the condition.”
The amendments also provide that leave for COVID-19 related reasons may be taken intermittently; however, employees must provide notice as soon as “practicable” and must also take reasonable efforts to cooperate with the employer to minimize undue disruption to business operations. The intermittent leave must be, “if possible,” a regular schedule of the day(s) of the week which are expected to be used for leave.
Additionally, the amendments prohibit employers from denying family leave for the above reasons to highly compensated employees.
The amendments also make technical corrections to the Temporary Disability Insurance framework’s definitions of family temporary disability leave, disability and serious health condition, as well as, eliminating the 7-day waiting period for benefits for COVID-19 related needs.
The new amendments are effective immediately and are retroactive to March 25, 2020.
Additional guidance and/or notices are anticipated to be published by the New Jersey’s Division on Civil Rights including, an updated workplace poster and fact sheets. We will continually monitor the DCR’s website.
Amendments to New Jersey’s Mini-WARN Act:
Included in the new bills signed into law by Governor Phil Murphy was Senate Bill 2353, which provides some much needed reprieve to New Jersey employers by relaxing the state’s mini-WARN Act in light of the COVID-19 pandemic. Typically, an employer’s obligations under NJWARN are triggered when a “mass layoff” occurs (i.e., a reduction in force that results in the termination of 50 or more employees at an establishment over a 30-day period).
This new bill however amends the definition of “mass layoff” under NJWARN to exclude layoffs that occur due to a “national emergency.” As a result, layoffs caused by the COVID-19 pandemic will no longer trigger an employer’s obligations under NJWARN. Importantly, this amendment to the law applies retroactively to March 9, 2020.
The new bill also delays the effective date of several previously enacted amendments to NJWARN, which were set to, among other things, expand the scope and coverage of the act, lengthen the notice requirements, and require mandatory severance pay. Rather than have these changes take effect on July 19, 2020 as scheduled, Senate bill 2353 provides that those amendments to NJWARN will become effective on the 90th day following the termination of Executive Order 103, which declared a Public Health Emergency and State of Emergency in the State of New Jersey.
The Bottom Line: As they continue to navigate through this national health crisis, employers must remain vigilant and keep apprised of all changes to both federal and state laws. Please let us know if you have any questions about the above new laws or if we can be of assistance to you in any way during these trying times.
1The new law removed comparable provisions from prior Senate Bill S2304, which included them under the definition of “serious health condition.” School and place of care closures were not previously included.