Effective October 1, 2013, New Jersey employers will be required to provide up to 20 days of unpaid leave during any 12-month period for an eligible employee who is the victim of domestic violence or sexual assault or whose child, parent, spouse, domestic partner or civil union partner was the victim of such act. Leave may be taken for each incident of domestic violence and/or sexual violence. The new law, the New Jersey Security and Financial Empowerment Act (“NJ SAFE” Act), applies to employers with at least 25 employees.
To be eligible, the employee seeking leave must have worked for the employer for at least 12 months and at least 1,000 base hours in the 12-month period immediately preceding the leave. Further, the employee must take the 20 days of unpaid leave within one year of the qualifying event.
The unpaid leave time permits affected eligible individuals:
- to seek medical attention for physical or psychological injuries;
- to obtain services from a victim services organization; pursue psychological or other counseling;
- to participate in safety planning for temporary or permanent relocation;
- to seek legal assistance to ensure health and safety of the employee or the employee’s relative; and
- to attend, participate in, or prepare for a criminal or civil court proceeding relating to an incident of domestic or sexual violence.
An eligible employee may elect or an employer may require the employee to use accrued paid vacation leave, personal time or sick leave and have unpaid and paid leave run concurrently. In addition, if the reason for leave is covered under the Family and Medical Leave Act of 1993 or the New Jersey Family Leave Act, the leave can be counted against the employee’s entitlement under that law.
If an employee foresees that leave is necessary, he or she must provide notice to the employer as far in advance as reasonable and practical. Likewise, an employer may require documentation verifying the employee’s leave of absence. The statute provides a list of acceptable forms of documentation. Accordingly, employers throughout New Jersey will face additional administrative requirements similar to those commonly encountered with FMLA or similarly covered leave for medical reasons.
The NJ SAFE Act contains a posting requirement, civil penalties for violations, availability of injunctive relief, and a private cause of action for any violation of the Act (in which a litigant may recover lost wages, benefits, costs, and attorney’s fees). Claims for harassment, retaliation or discrimination because of the use of or entitlement to leave under the statute are covered.
To ensure compliance with the NJ SAFE Act, New Jersey employers should consider updating their employee policies, obtaining and displaying a NJ SAFE Act poster (available from the NJ Commissioner of the Labor and Workforce Development), and educating their supervisory and managerial employees as to their obligations under the Act. Further, New Jersey employers with operations in states that have similar laws should consult counsel to ensure that they are in compliance with the specific provisions of all such leave laws.