NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.
With the signing of S2304 on March 25, 2020, Governor Murphy expanded New Jersey’s Earned Sick and Safe Leave Law, Family Leave Act, and the Temporary Disability Benefits Law to protect employees who cannot work due to circumstances caused by COVID-19. The amendments went into effect immediately upon signing.
New Jersey Earned Sick and Safe Leave Law (NJESSL)
S2304 expands the NJESSL, under which covered employees can accrue up to 40 hours of paid sick and safe time. With the amendments, employers must allow employees to use their earned leave when they cannot work due to:
- Closure of their workplace, or the school or place of care of their child, because of a state of emergency declared by the governor;
- Declaration of a state of emergency by the governor or the issuance by a health care provider or the commissioner of health or other public health authority, that the employee’s presence in community, or that of a member of the employee’s family in need of care by them, would jeopardize the health of others; or
- During a governor-declared state of emergency, or upon the recommendation, direction, or order of a healthcare provider or authorized public official, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding that the individual/family member’s presence in the community would jeopardize the health of others.
Previously, employees were entitled to use earned sick and safe time if their place of work or their child’s place of care was closed “by a public official.” These amendments expand the law and clearly provide paid time off to employees who have been impacted by the governor’s recent executive orders. Further, the amendments clarify that individuals who are subject to quarantine, even if they do not have COVID-19, are entitled to use earned sick and safe time.
New Jersey Family Leave Act (NJFLA)
The NJFLA allows qualifying employees of covered employers to take up to 12 weeks of unpaid family leave in a 24-month period for the birth or adoption of a child or to care for a family member with a serious health condition. S2304 makes the following amendments to the NJFLA:
- Expands the definition of “serious health condition” during a governor-declared state of emergency or similar health crisis. Under such circumstances, “serious health condition” includes “an 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 of a family member of the employee due to: (1) the issuance by a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of a family member may jeopardize the health of others; and (2) the recommendation, direction, or order of the provider or authority that the family member be isolated or quarantined because of suspected exposure to the communicable disease.”
- Eliminates certain advance notice and certification requirements when the leave is due to these expanded “serious health conditions” related to a state of emergency or similar health crisis.
As not everyone who is suspected of having COVID-19 is able to get tested, these amendments protect employees who are known or suspected to have been exposed to the disease and therefore are told to self-quarantine.
New Jersey Temporary Disability Benefits Law (NJTDBL)
The NJTDBL provides wage replacement (subject to certain caps) for qualifying employees. The benefits are paid through the state or via a state-approved private plan, if established by the employer, and are funded through payroll deductions. S2304 amends the NJTDBL by:
- Expanding the definition of “serious health condition” to reflect the new definition utilized in the NJFLA described above, except that for purposes of the NJTDBL, the definition refers to “the employee or family member of the employee”;
- Amending the definition of what is a “compensable disability” to now include “leave to care for family members suffering from accident or sickness” and the definition of “sickness” to mirror the expansion to the definition of “serious health condition” under the NJFLA described above; and
- Eliminates the seven-day waiting period for benefits eligibility when benefits are sought related to an employee’s own serious health condition only if it falls within the newly expanded definition.
Notably, these changes are not temporary measures in place for the current COVID-19 pandemic, but are permanent amendments to the law. Employers should update policies and notices to ensure compliance.
