New Jersey Expands Earned Sick Leave and State Benefits

April 3, 2020Alerts

New Jersey has continued enacting legislation in response to the coronavirus pandemic. On March 25, 2020, Gov. Phil Murphy signed a bill that expands the scope of two existing New Jersey employment laws – Earned Sick Leave (ESL), the Family Leave Act (FLA) – as well as Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI). These expansions seek to make benefits available for those impacted by the coronavirus in various ways.

In addition, the New Jersey Department of Labor and Workforce Development (NJDOL) issued emergency rules that took effect April 1, 2020 protecting the jobs of employees who take time off from work because of the virus. 

The ESL was already available for use during this crisis if an employee becomes infected with the virus, has to take care of a sick family member, has to take care of their child due to school or childcare closure, or because they are unable to work due to a closure for a public health emergency.

ESL is now available when:

  • there is a closure of the workplace, school or place of childcare by an order of a public official or because a state of emergency was declared by the governor;
  • an employee cannot work because of a state of emergency or issuance by a public official of a determination that the presence in the community of the employee or an employee’s family member in need of care by the employee, would jeopardize the health of others; or
  • a state of emergency is declared by the governor, or upon the recommendation or order by a healthcare provider, or other authorized public official that the employee undergo isolation or quarantine, or cares for a family member in quarantine as a result of suspected exposure to a communicable disease that would jeopardize the health of others

Similarly, the Family Leave Act was already available for employees who need to care for a family member who contracted the virus. Now, the FLA is expanded to make clear that the quarantine or isolation of a family member could also apply.

FLA amendments:

  • During a state of emergency declared by the governor, or when indicated to be needed by another public health authority, the definition of “serious health condition” shall also include an illness caused by an epidemic or a communicable disease, a known or expected exposure to a communicable disease, or efforts to prevent spread of communicable disease, which requires in-home care or treatment because the presence of the family member may jeopardize the health of others and the family member was recommended or ordered to be isolated or quarantined; and
  • An employer may not deny family leave to the employee under these circumstances;

Finally, employees who are out of work because they have the coronavirus, or to care for family member who has it, were likely already eligible for TDI or FLI respectively. Now, they are both expanded to cover time off due to isolation or quarantine.

TDI and FLI expansion:

  • During a state of emergency declared by the Governor, or when indicated to be needed by another public health authority, the definition of “serious health condition” shall also include an illness caused by an epidemic or a communicable disease, a known or expected exposure to a communicable disease, or efforts to prevent spread of communicable disease, which requires in-home care or treatment because the presence of the employee or family member may jeopardize the health of others and the employee or family member was recommended or ordered to be isolated or quarantined; and
  • During a state of emergency declared by the governor, a compensable disability now includes 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 because the presence of the employee or family member may jeopardize the health of others and the employee or family member was recommended or ordered to be isolated or quarantined;
  • In these circumstances, the seven-day waiting period for benefits will not apply.

New NJDOL Rules to Protect Employees

The NJDOL issued emergency rules that went into effect on April 1, 2020 to protect employees who take time off from work because they have COVID-19 or other infectious disease (as that term is defined). While state leave entitlements that are available to employees who are suffering from the coronavirus all contain anti-retaliation provisions, these new rules are specific to this crisis. They make clear that it is a “protected leave,” if an employee takes time off from work based on the written or electronically transmitted recommendation of a medical professional that the employee has, or is likely to have, an infectious disease that may cause others at the workplace to become infected. 

Once the leave expires, the employee must be restored to their position with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment. If the position has been filled, then the employee must be returned to an equivalent position with equivalent status, benefits, pay and other terms and conditions of employment. It will not violate these rules, however, if the employer conducts a reduction in force during the employee’s leave period that would have affected that employee had they been at work, or if the employee would have been impacted by a good faith operation of a bona fide layoff and recall system that would not entitle the employee to reinstatement to the former or equivalent position. 

The remedies for an aggrieved employee are reinstatement to their position or equivalent position, and a fine of $2,500 for each violation. A complaint that alleges violations of these rules will be treated in the same manner as a claim for wages, whereby a hearing will be conducted by a Wage Collection Referee. 

We will continue to provide updates on new legislation as it comes. For more information about this alert, please contact Jonathan D. Ash at 609.895.7079 [email protected], or any member of the firm’s national Labor & Employment Department.