On February 19, 2019, New Jersey Governor Phil Murphy signed legislation that amends and significantly expands New Jersey’s existing Family Leave Act (NJFLA) and Family Leave Insurance law (NJFLI). Here are some of the key changes resulting from the amendment.
The NJFLA currently applies to employers with 50 or more employees. The amendment reduces the employer size threshold to just 30 employees. Thus, beginning on June 30, 2019, employers with 30 or more employees (in total, anywhere) are required to provide those employees working in New Jersey with 12 weeks of job-protected family leave during each 24-month period. This change thus takes the NJFLA out of alignment with the federal Family and Medical Leave Act (FMLA), which applies only to employers with 50 or more employees.
The amendment also modifies the NJFLA to provide that family leave may be taken in connection with the placement of a child into foster care with the employee, not just upon the birth or adoption of a child. This change aligns the NJFLA with the FMLA. The amendment also provides that leave may be taken in connection with the birth of a child conceived using a gestational carrier agreement.
Employees may take NJFLA leave to care for a family member with a serious health condition. The amendment expands the definition of “family member” to include “parent-in-law,” “sibling,” “grandparent,” and “any other individual 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.” Some of these relationships were previously included in the applicable regulations but not in the law itself; some are new relationships.
In addition, the amendment permits employees to use intermittent leave upon the birth, adoption or foster care placement of a child without the employer’s approval. Formerly, employees had to take such leave on a consecutive basis unless the employer agreed to allow the use of intermittent leave.
Finally, the amendment also reduces the advance notice requirement from 30 days to 15 days when an employee requests intermittent leave to care for a family member with a serious health condition. For other leave requests, the advance notice requirement remains 30 days.
The NJFLI provides wage replacement benefits to employees on family leave through the state’s temporary disability leave benefits program. The following significant changes will take effect on July 1, 2020.
First, the amendment doubles the number of weeks of paid leave benefits from 6 to 12 within a 12-month period. The amount of intermittent paid leave benefits is also increased from 42 to 56 days in a 12-month period, and intermittent leave may also now be used in the case of foster care placement. Previously, the law allowed intermittent leave only to care for a newborn or an adopted child.
Second, the amendment raises the cap on the weekly benefit amount from two-thirds to 85 percent of an employee’s weekly salary, to a maximum of 70 percent (up from 53 percent) of the statewide weekly remuneration average. That means the weekly maximum benefit will increase from $633 per week to $859 per week in 2020.
Third, the amendment prohibits employers from requiring employees to use up to two weeks of paid time off (PTO) in lieu of NJFLI benefits (but still allows employees to elect to use PTO in lieu of NJFLI benefits). Further, when an employee elects to use PTO benefits, this will no longer reduce the amount of NJFLI benefits available to that employee.
The amendment modifies the requirements applicable to employers who provide NJFLI (and temporary disability) benefits through a private plan by limiting the requirement that a majority of employees approve the use of a contributory private plan to employees covered by a collective bargaining agreement.
The law contains a comprehensive anti-retaliation provision. The amended law prohibits the discharge, harassment, or any other conduct interfering with the terms and conditions of employment on the basis that the employee requested or took leave. The employer also may not refuse to restore an employee after a period of leave. Significantly, the law provides a private right of action to the employee plus of a host of remedies, including monetary damages, attorneys’ fees and costs, and injunctive relief and reinstatement to his or her former position. The law also authorizes a schedule of fines that can be imposed by the court.
Finally, the amended law eliminates the seven-day waiting period for NJFLI benefits. Formerly, employees did not receive benefits for the first seven days of family leave, unless benefits continued for more than three weeks, in which case the initial seven days were paid retroactively. The amendment eliminates the seven-day waiting period altogether for NJFLI benefits.
The New Jersey Department of Labor and Workforce Development last issued its Family Leave Insurance poster in 2008. That poster will likely be superseded by a new one once the July 2020 increase in benefits goes into effect.
The amendment expands employee rights under the New Jersey Security and Financial Empowerment (SAFE) Act, which provides leave for employees who are victims of domestic violence or sexual assault, or have a family member who is a victim. Effective July 1, 2020, employees taking leave under the SAFE Act will be eligible for wage replacement benefits from the state, just like employees who take NJFLA leave.
The amendment also expands the definition of “family member” under the SAFE Act to mirror its definition under the NJFLA; i.e., to include a “parent-in-law,” “sibling,” “grandparent,” and “any other individual 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.”