New Jersey Expands Its Family Leave Act – Again

New Jersey amended its Family Leave Act (FLA) on April 14, allowing eligible employees to use family leave to care for a child whose school or daycare is closed because of a public health emergency. The April 14 amendment is the second one in a month and clarified changes to the law that were previously adopted on March 25.

The FLA has long allowed employees to take up to 12 weeks of job-protected leave to bond with a new child or care for a family member with a serious health condition. The FLA was amended on March 25, 2020, to expand the reasons employees can use FLA to include care for a family member who was sick or being quarantined for reasons relating to the coronavirus (COVID-19) epidemic.

The April 14 amendment added still another reason for using FLA and clarified the March 25 additions to the law. After this most recent amendment, FLA may be used for the following purposes:

• To provide in-home care for a child due to government closure of the child’s school or place of care due to the COVID-19 epidemic or other public health emergency;
• To care for a family member who is subject to a mandatory quarantine order or similar government determination because of illness from or exposure to a communicable disease that would cause the family member’s presence in the community to jeopardize the health of others; and
• To care for a family member who has been advised by a healthcare provider or a public health official to voluntarily quarantine because the family member’s presence in the community would jeopardize the health of others.

The April 14 amendment also added certification requirements for leave taken for these purposes:

• For school/daycare closure, the employee must certify the date when the closure commenced and the reason for the closure;
• For leave taken because of a mandatory quarantine order, the employee must certify the date of the issuance of the order and the anticipated duration of the order; and
• For leave taken because a healthcare provider or public health official has recommended a voluntary quarantine, the employee must certify the date of the recommendation, the probable duration of the recommended quarantine, and the medical or other facts that led to the recommendation.

Finally, the April 14 amendment clarified that employees may use FLA for the above reasons on an intermittent basis as long as the employees provide advance notice before they use the leave and make a reasonable effort to schedule the leave so as not to unduly disrupt operations. Furthermore, where possible, employers may ask the employees to provide a regular schedule of the day or days they will take the intermittent leave.

Family Leave Insurance

New Jersey does not have a paid family leave law, per se. But, the state does have a Family Leave Insurance (FLI) program, which provides some income to employees who are taking a leave covered by the FLA. Currently, the FLI program provides income for up to six weeks. But, on July 1, 2020, that will expand to twelve weeks.

The March 25 and April 14 amendments expanded the scope of the FLI program to align with changes made to the FLA. Individuals may apply to the state for benefits from the FLI program when they must care for family members who are subject to a mandatory quarantine order or advised to self-quarantine under the circumstances set forth in the amendments to the FLA. Notably, the statutory amendment does not extend FLI benefits to employees who must take leave to care for children whose schools or childcare providers are closed due to the public health emergency. However, there has been some guidance from the US Department of Labor (DOL) to suggest that they may approve benefits for this purpose. Employers should stay tuned in the event this is clarified in future guidance from the DOL or through future statutory amendments. Finally, the amendments eliminated the seven-day waiting period that typically applies to FLI when an individual is taking family leave for a reason relating to a pandemic or public health emergency.

Interaction with Federal Law

Leave taken pursuant to the New Jersey FLA will run concurrently with any leave entitlement pursuant to the Family and Medical Leave Act (FMLA). The federal Families First Coronavirus Response Act (FFCRA), which was effective April 1, temporarily expanded the scope of the FMLA to include leave taken because a child’s school or childcare provider has closed due to a declared emergency related to COVID-19. While the FFCRA only covers certain smaller employers with less than 500 employees, employees who are covered by both laws will have those leave entitlements run concurrently.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Princeton
August W. Heckman, III
Terry D. Johnson
Thomas A. Linthorst
Sean P. Lynch
Joseph A. Nuccio
Richard G. Rosenblatt
Michelle S. Silverman
James P. Walsh, Jr.