New Jersey's Family Leave Act (NJFLA), which is similar to the federal Family Medical Leave Act, provides up to 12 weeks of protected, unpaid leave per 24-month period to care for a family member with a serious health condition. For nearly a decade, New Jersey's Temporary Disabilities Benefits Law (NJTDBL) has permitted a vehicle for payment during a NJFLA leave, among other leaves, but recent amendments vastly expand the provisions of NJFLA, NJTDBL and the New Jersey Security and Financial Empowerment Act (NJSAFE). The amendments expand upon the employees who are eligible for NJFLA leave, the amount of leave an eligible employee can take, the amount of benefits an eligible employee receives while on leave and the definition of family member.
On June 30, 2019, the amendment expands the definition of who is eligible for NJFLA leave to employees employed by employers who employee 30 or more employees – down from the 50 or more employees currently required.
Currently, the NJTDBL provides employees with up to six weeks of benefits (or 42 days of intermittent leave) while on qualified leave, and the benefits paid are two-thirds of their pay, up to $600 per week. Effective July 1, 2020, the amendment increases the benefit time under NJTDBL to 12 weeks per year (or 56 days of intermittent leave) and increases the payment during leave to 85 percent of their salary, up to $860 per week. Additionally, as of July 1, 2019, employees will no longer be required to wait one week before NJTDBL benefits are available and instead will be eligible to receive NJTDBL benefits immediately upon taking a qualified leave. The increases in benefits will continue to be funded by payroll deductions.
The amendment also expands the definition of a family member under NJPFLA, NJSAFE and NJTDBL. Domestic partners, foster children, children born via surrogate, siblings, grandparents, grandchildren and parents-in-law all have been added to children, parents, spouses and civil union partners, who previously were covered. Additionally, the amendment adds the increasingly popular catchall for the definition of family member: "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." This expanded definition permits almost anyone to qualify as a family member for which NJPFLA/NJSAFE can be taken and leave for which NJTDBL benefits can be paid.
The amount of time an employee may take intermittent NJPFLA leave is also increased – eligible employees are now entitled to take intermittent leave for up to 12 consecutive months (rather than the 24 weeks previously permitted). Additionally, employers are now required to grant intermittent leave for the birth or adoption of a child.
Employees using NJSAFE time are now permitted to use NJTDBL. Additionally, employers can no longer require employees to use their accrued paid vacation for absences qualifying under NJTDBL.
What action employers should take
Employers should be sure to update their policies and forms consistent with the amendment, including a new anti-retaliation provision for the NJTDBL, which prohibits employers from retaliating against employees for requesting or receiving NJTDBL benefits, including failing to reinstate an employee following a leave, but the amendment does not go so far as to say that any leave wherein benefits are paid pursuant to NJTDBL is protected (if the leave is not otherwise protected by applicable statute under, for example, the NJFLA). So, the amendment does not impose a requirement that employers reinstate an employee after he or she has been paid NJTDBL, but instead it appears that this amendment will act as a rebuttable presumption that an employer retaliates when failing to reinstate an employee who has received NJTDBL benefits but was not on protected leave.
Employers that choose to use a private plan rather than a state plan to fund temporary disability benefits should also ensure that notice is properly given to employees, as the penalties for failure to notify employees regarding these private plans has increased with the new amendment. The notice, which will be prepared by the state, must be posted and distributed to each employee.
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