New Jersey is at the forefront of expanding protections afforded to workers in the wake of the COVID-19 pandemic.

Governor Phil Murphy signed into law Senate Bill 2304 (S2304), expanding leave rights and benefits available to workers under New Jersey’s Earned Sick Leave Law, Family Leave Act, Temporary Disability Benefits Law and Family Leave Insurance Program for absences attributed to COVID-19. This law took effect immediately as of March 25, 2020.

Paid Sick Leave Benefits

Pursuant to the Earned Sick Leave Law, all New Jersey employers, regardless of size, must provide employees with a maximum of 40 hours of paid sick leave per year. Full-time and part-time employees are eligible for paid sick leave, with limited exceptions (see our previous Alert).

Prior to the COVID-19 pandemic, the Earned Sick Leave Law provided benefits for, among other things, care, treatment or recovery from the employee’s own illness, or a covered family member’s illness, or to obtain preventive medical care for the employee or the employee’s family member. S2304 makes clear that paid sick leave may be used for the following reasons during a state of emergency declared by the governor, or when necessary as indicated by the Commissioner of Health or other public health authority:

• Absences due to the closure of the employee’s workplace or the school or place of care of a child of the employee;
• Absences based on a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others; and
• Absences by an employee who needs to undergo isolation or quarantine, or care for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by a healthcare provider or authority that the presence in the community of the employee or family member would jeopardize the health of others.

Family Leave

The New Jersey Family Leave Act (FLA) entitles eligible employees to take up to 12 weeks of unpaid family leave in a 24-month period to care for a family member with a serious health condition. While the FLA and FMLA overlap in many respects and may run concurrently, there are some key differences:

• The FLA applies to employers with 30 or more employees;
• The FLA does not provide leave for the employee’s own health condition;
• The FLA broadly defines a “family member” as a child, parent, a parent-in-law, sibling, grandparent, grandchild, spouse, domestic partner, civil union partner, any other individual related by blood to the employee or any other individual that the employee shows to have a close association that is the equivalent of a family relationship.

S2304 expands the definition of a serious health condition, allowing employees to take up to 12 weeks of leave when a healthcare provider or other authority determines that a family member’s presence in the community may jeopardize the health of others and recommends or orders the family member’s isolation or quarantine because the family member contracts COVID-19, is known or suspected to have been exposed to COVID-19, or to prevent the spread of COVID-19.

In addition, the need for family leave under this amendment cannot be denied to employees who are among the highest-paid 5 percent or the seven highest-paid employees of the employer, a limitation applicable to other leaves under the FLA.

Temporary Disability and Family Leave Insurance Benefits

S2304 also expands the scope of the Temporary Disability Benefits Law (TDB), which provides employees with two-thirds of their average weekly wage (up to a maximum of $667 per week) when taking leave for a qualifying disability that is not covered under an employer’s private short-term disability plan. S2304 expanded the definition of a “serious health condition” for which a worker may obtain benefits, either for the worker’s own condition in the case of TDB benefits or for the condition of a family member cared for by the worker in the case of Family Leave Insurance (FLI) benefits. The new law provides that during a state of emergency declared by the governor, a “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:

1. In the case of FLI benefits, prompts a public health authority to issue a determination that the presence in the community of the worker’s family member in need of care by the worker would jeopardize the health of others; or
2. In the case of FLI or TDB benefits, results in the recommendation of a healthcare provider or public health authority that a worker, or a family member of the worker in need of care by the worker, voluntarily undergo self-isolation or self-quarantine as a result of suspected exposure to a communicable disease because the presence in the community of that worker or family member would jeopardize the health of others.

The law also eliminates the current one-week waiting period for disability benefits in the indicated epidemic-related cases.

What This Means for New Jersey Employers

New Jersey is at the forefront of expanding protections afforded to workers in the wake of the COVID-19 pandemic. Employers should amend and apply their sick leave and New Jersey family leave policies in accordance with S2304. Now more than ever, employers are faced with navigating ever-changing legal requirements that affect their workforce and operations, whether implemented by law, executive order or agency guidance. Given the rapid-fire changes occurring almost daily, employers are advised to consult with counsel to ensure compliance with the current legal landscape.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Kathleen O'Malley, Alison C. Morris, any of the attorneys in the Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.