NEW JERSEY DEVELOPMENTS: ENHANCED LEAVE OF ABSENCE AND JOB PROTECTION UNDER NJ FLA TO CARE FOR FAMILY MEMBERS

Posted On April 17, 2020  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

April 17, 2020

 

At Matrix and Reliance Standard, we have been tirelessly keeping up with the explosion of legislation that has been introduced and enacted to address COVID-19 related leaves of absence, disability plans, paid sick leave, and accommodations. We previously told you about New Jersey legislative activity related to COVID 19 just 2 weeks ago. Here is a link to that blog post.

On April 14, Governor Phil Murphy signed NJ SB 2374, further amending the New Jersey Family Leave Act (“FLA”) to expand leave rights for employees who need to care for family members due to known or suspected exposure to COVID-19. These amendments were made effective retroactively to March 25, 2020.

Here is a summary of the important changes:

Expansion of the Definition of Family Leave: The amendment broadens the bases for which an eligible employee can take FLA to include leave from employment. Employees can now use the FLA’s job-protected 12 weeks in a 24-month period for leave needed due to an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease, when made necessary by a state of emergency declared by the Governor or public health authority. New leave reasons include:

  1. In-home care or treatment of a child due to school or daycare closing by order of a public health official;
  2. Quarantine from a public health authority of a family member in need of care due to known or
    suspected exposure to a communicable disease; or
  3. A recommendation by a healthcare provider or public health authority that a family member in need
    of care voluntarily self-quarantine due to suspected exposure to a communicable disease.

Certification. For leave due to school or day care closing, the employer may only request documentation of the date and reason for closing. Similarly, for reason #2, the only documentation required is the date of issuance of the determination and probable duration. For reason #3, voluntary self-quarantine, the employee certification is limited to the date of the recommendation, its probable duration and any “medical or other facts known to the healthcare provider or authority.”

Intermittent leave. Family leave for the new reasons can be taken intermittently if the employee: 1) provides notice as soon as practicable; 2) makes a reasonable effort to schedule that time to limit the disruption to the employer’s operations; and 3) if possible, gives the employer an advance regular schedule of the day(s) of the week on which intermittent leave will be taken.

This seems odd in that the law allows an employee to work intermittently even if the reason for leave is quarantine of a family member due to known or suspected exposure to the communicable disease – which means the employee himself may also have been exposed. There is no limitation such as intermittent leaves being available only for an employee who is able to work remotely.

Expansion of NJ Family Temporary Disability Benefits. In addition to expanding FLA, the amendment expanded NJ Family Leave Insurance (FLI). The definition of “disability” now allows benefits for an employee to care for a family member who requires in-home care or treatment because he or she is subject to a quarantine order issued by a public health authority or healthcare provider.

 

Matrix can Help!

At Matrix we don’t just track all this state and federal legislation – we jump into action!  We are constantly updating our leave administration practices and staff training to apply each new COVID-19-related provision. So, reach out to your account manager with specific questions and make sure to continue to read our blog for the latest updates and developments. Stay safe!

JERSEY, SURE: NJ JOINS THE COVID-19 LEGISLATIVE FLURRY

Posted On March 30, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

March 30, 2020

 

 

On March 25 New Jersey’s governor signed Senate Bill 2304 that increases rights under several leave and benefits laws to address COVID-19 challenges for employees.  These changes were effective immediately.  Here’s a rundown:

Author’s note: Pardon the cumbersome language, but the statutory language is even more complicated!  Be sure to consult the actual wording of SB 2304 as you apply its provisions. 

Family Leave Act and Family Leave Insurance.  The Family Leave Act (FLA) provides up to 12 weeks of leave in a 24-month period to bond with a new child or to care for a family member with a serious health condition.  Family Leave Insurance provides paid leave of absence benefits for substantially similar reasons as the FLA.  SB 2304 amends both acts by adding to the definition of “serious health condition.”  This term now includes, for both laws, leave needed due to the isolation or quarantine of a family member that meets specific criteria:

  • an illness caused by, a known or suspected exposure to, or efforts to prevent the spread of a
    communicable disease that requires in-home care or treatment of a family member of the
    employee due to:

    • the issuance by a healthcare provider or public health authority of a determination
      that the presence in the community of a family member may jeopardize the health
      of others; and
    • 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.

Another addition to the FLA relates to the “key employee” provision of the act.  Normally, a New Jersey employer can deny family leave to a highly-paid employee when the denial is necessary to prevent substantial and grievous economic injury to the employer’s operations. Now, this provision is not applicable when the leave is needed for circumstances such as those described immediately above (in short, the quarantine or isolation of a family member).

Temporary Disability Insurance.  The statute providing temporary disability insurance for an individual’s non work-related accident or sickness has also been amended.  The term “sickness” (whether relating to a family member or the employee) now includes the same criteria as specified above for “serious health condition,” but also includes the need for in-home care or treatment of “the employee or family member of the employee.”

SB 2304 also waives the typical 7-day waiting period, only for temporary disability benefits attributable to the additional definition of “sickness.”  (Family Leave Insurance does not have a waiting period.)

Earned Sick Leave.  The New Jersey Earned Sick Leave Act provides workers with 1 hour of paid sick leave for every 30 hours worked.  Under the original act this paid leave could be used for multiple reasons, including closure of the employee’s workplace or the school or place of care for the employee’s child due to a public health emergency, or because of a determination that the presence in the community of the employee or a family member in need of care by the employee would jeopardize the health of others.

This reason has now been expanded to include time during which the employee is not able to work because of:

  • a closure of the employee’s workplace, or the school or place of care of a child of the
    employee due to a public health emergency;
  • a declaration of a state of emergency by the governor;
  • 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; or
  • due to a state of emergency or the recommendation 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 by the provider or authority that the presence
    in the community of the employee or family member would jeopardize the health
    of others. (It’s not just you, this last point does seem confusingly redundant.)

Matrix Can Help!

At Matrix we track COVID-19-related state and federal legislation on a daily basis – or even more often!  We are updating our leave administration practices and training claims examiners to apply the new COVID-19-related provisions of the New Jersey laws.  Keep watching this blog for news as it develops.

CORONAVIRUS UPDATES DU JOUR: SENATE PASSES AND PRESIDENT SIGNS FMLA EXPANSION AND PAID SICK LEAVE; STATE PAID LEAVE LAWS – WHEN & HOW DO THEY APPLY?

Posted On March 19, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

March 19, 2020

 

The Families First Coronavirus Response Act

In the past two days we have reported on the progress of House of Representatives Bill 6201 proposing expansions of the Family and Medical Leave Act and new paid sick leave requirements here and the House amendments here (or if you widely bookmarked Matrix-Radar, just scroll down!).  On March 18 that bill passed the U.S. Senate and was signed into law by President Trump.  The final version was unchanged from H.R. 6201, so our summary in those two blog posts is still accurate – read them both, and we will follow up soon with more details. In the meantime, remember it goes into effect April 2, 2020; and still impacts only employers with fewer than 500 employees.

Moving on:

State Paid Family and Medical/Disability Laws

Now let’s take a look at how existing or recently-modified state leave laws (paid and unpaid) relate to COVID-19 situations.  NOTE!  This is a very fluid and fast changing situation.  This information is accurate as of press time. We will update this post as needed for new developments.

This overview relates primarily to state paid family and medical or disability benefits and leave laws.  Many states also have paid sick and safe leave laws, and a good number of those cover employee absences due to the closure of schools and day care facilities. In addition, some situations where an employee is ordered by the employer to stay home, or experiences reduced hours or a business closure, may be covered by state unemployment insurance. These are mentioned below only if the state COVID-19 information website specifically addresses the issue. 

A Better Balance is a great resource for state and municipal/county paid sick leave laws.  Check out their website for a comprehensive chart.

California.  The Golden State has taken several steps to provide or clarify state benefits coverage to situations relating to COVID-19:

  • Disability and employee quarantine: An employee may qualify for disability insurance due to their own
    illness and/or quarantine. “Disability” is defined by California statute to include inability to work due to
    a nonwork illness or injury and also “because of a written order from a state or local health officer to an
    individual infected with, or suspected of being infected with, a communicable disease.”
    CA Unemp Ins Code § 2626 (2017).

The Employment Development Department is waiving the one-week elimination period for DI claims for individuals who are unemployed and disabled as a result of COVID-19.  See Governor’s Executive Order. So far this does not appear to apply to voluntary plans. EDD still requires a medical certification signed by a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis has been obtained, a statement of symptoms; the start date of the condition; its probable duration; and the treating physician’s or practitioner’s license number or facility information. This requirement can also be met by a written order from a state or local health officer that is specific to the employee.

  • Paid Family Leave: Employees missing work to care for an ill or quarantined family member with COVID-19
    may qualify for paid family leave (presently up to 6 weeks, increasing to 8 weeks on July 1, 2020).
    “Family member” is defined as a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling,
    spouse, or registered domestic partner. EDD still requires a medical certification for the family member
    from a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis
    has been obtained, a statement with the same information listed above for disabilities. This requirement
    can also be met by a written order from a state or local health officer that is specific to the family member’s
    situation.
  • School Closures: If an employee has to miss work because their child’s school is closed, they may be eligible
    for Unemployment Insurance benefits. Eligibility considerations include if the employee has no other
    care options and if they are unable to continue working normal hours remotely.
  • Work closures or reduced hours: Again, unemployment benefits may be available to employees if the
    employer closes its business or reduces work hours. In these cases the employee is not required to actively
    look for other employment but must be ready and available to work throughout the period of
    unemployment or reduced schedule.

California EDD COVID-19 website:  https://edd.ca.gov/about_edd/coronavirus-2019.htm

New Jersey:

  • Disability and employee quarantine: The state’s Temporary Disability Insurance will cover an individual who
    has tested positive for COVID-19 or has symptoms and is unable to work.  The employee must first exhaust
    their leave available under New Jersey’s Earned Sick Leave law, which provides up to 40 hours of paid sick time.
    The employee must still provide the usual medical support from a health care provider, including diagnosis
    and duration the employee is expected to be off work. New Jersey TDI does not cover employee quarantine
    situations.
  • Paid Family Leave: New Jersey Family Leave Insurance (FLI) will apply to employee time off needed to care
    for a family member with a serious health condition. There are no provisions relating to caring for a family
    member due to a COVID-19-related quarantine.
  • School closures: Employee absences due to school or day care closures are not covered under New Jersey FLI.
    New Jersey’s Earned Sick Leave law provides paid sick time (up to 40 hours) that employees can use when their
    children’s school or child care facility is closed due to an epidemic or public health emergency.
  • Work closures or reduced hours: Unemployment benefits may be available to employees if the employer
    closes its business or reduces work hours.

New Jersey COVID-19 website:  https://www.nj.gov/labor/worker-protections/earnedsick/covid.shtml

New York

NOTE:  On March 18, 2020, Governor Cuomo signed emergency legislation guaranteeing job protection and pay for New Yorkers who have been quarantined as a result of novel coronavirus, or COVID-19. Here are the specifics: 

  • Employers are required to provide sick leave for absences due to a COVID-19-related quarantine ordered
    by the state or an authorized state or local department or board of health, according to the employer’s
    size and net income:

    • Employers with 10 or fewer employees: unpaid leave for the duration of the quarantine.
    • Employers with 10 or fewer employees and net income greater than $1 million: 5 days of paid leave,
      plus unpaid leave for the duration of the quarantine.
    • Employers with 11-99 employees: 5 days of paid leave, plus unpaid leave for the duration of the
      quarantine.
    • Employers with 100 or more employees: 14 days of paid leave (no reference to unpaid leave for
      the duration of a quarantine).
  • The employee can apply for New York disability and paid family leave (PFL) benefits after using the mandated
    paid leave. The waiting period is waived for employees of employers with 10 or fewer employees and $1 million
    or less in net income.
  • This paid sick leave must be provided without loss of an employee’s other accrued sick leave.
  • The definition of “disability” for purposes of disability benefits is expanded to include the inability of the
    employee to perform the duties of his/her position or other offered position due to an order of quarantine
    relating to COVID-19, after exhaustion of the paid sick leave (PSL) offered by the employer (presumably
    including company-offered PSL and the newly mandated PSL).
  • Paid family leave is expanded to include leave taken by an employee subject to an order of quarantine relating
    to COVID-19 applicable to the employee or to the employee’s minor dependent child.
  • Benefits available under the disability law and paid family leave run concurrently, with the PFL benefits
    being primary.
  • The amount of benefits available for COVID-19-related disability is a maximum of $2,043.92 per week, and
    for COVID-19-related PFL is a maximum of $840.70 per week. After application of PFL benefits, the amount
    of disability benefits is capped so that the employee does not receive in total more than the employee’s
    average weekly wage.
  • If the federal government provides sick leave and/or employee benefits for employees related to COVID-19,
    then the federal benefits apply first and the state benefits described above serve as a top-off up to the
    limits provide by the New York bill.
  • The employee must be restored to his/her position held prior to the quarantine (so, same position, not
    an equivalent position
    ).

Rhode Island:

  • Disability and employee quarantine: Employee COVID-19-related illnesses may be covered by Rhode Island
    Temporary Disability Insurance (TDI).  The Rhode Island Department of Labor and Training (DLT) will waive
    the 7-day minimum claim duration so employees can get coverage from their first day of COVID-19 illness.

By its terms TDI does not to apply to an employee under quarantine but not actually diagnosed with COVID-19 or exhibiting symptoms. However, the Rhode Island COVID-19 Workplace Fact Sheet provides this statement:  “For individuals under quarantine, DLT will waive the required medical certification, and instead will allow them to temporary qualify via self-attestation that they were under quarantine due to COVID-19.”  This appears intended only to waive the medical certification requirement if someone is quarantined, not to create new TDI coverage.

  • Paid Family Leave: Rhode Island Temporary Caregivers Insurance (TCI) provides 4 weeks of time off to care
    for a seriously ill family member (child, parent, spouse, domestic partner, parent-in-law, or grandparent).
    There is no TCI coverage because a family member is in quarantine.
  • School closures: Employee absences due to school or day care closures are not covered under Rhode Island TCI.
  • Work closures or reduced hours: If a workplace closes or an employee is directed by the employer to remain
    home, the employee may be eligible for unemployment insurance.

Rhode Island COVID-19 Workplace Fact Sheet:  www.dlt.ri.gov/pdfs/COVID-19 Workplace Fact Sheet.pdf

Washington:

  • Disability and employee quarantine: Washington’s new Paid Family and Medical Leave law covers an employee’s
    absence from work due to a serious health condition.  Employees must still provide medical certification of the
    employee’s condition, but this can be obtained via email and the Employment Security Department will accept
    an electronic signature.  An employee’s time off from work due for purposes of quarantine is not covered by
    Washington PFML, but the employee may be eligible for unemployment insurance.
  • Paid Family Leave: Paid family leave is available to care for a family member with COVID-19 if a medical provider
    certifies that it qualifies as a serious health condition.
  • School closures: Employee absences due to school or day care closures are not covered under Washington PFML.
    Unemployment insurance may be available.
  • Work closures or reduced hours: If an employee is laid off work temporarily or if receives reduced hours due to
    a business slowdown or a lack of demand as a result of COVID-19, the employee may be able to receive
    unemployment benefits. If placed on “standby” status the employee does not have to look for another job while
    collecting unemployment benefits as long as certain conditions are met (including performing available telework).

Washington COVID-19 websites abound:

https://esd.wa.gov/newsroom/covid-19

https://paidleave.wa.gov/coronavirus/

easy-to-read comparison guide

https://esd.wa.gov/newsroom/covid-19#forms

 

Are we having fun yet?

Look, let’s get real for a moment. None of us have ever lived through something precisely like this moment in time. Scary? Sure. Complicated? You bet. Changing every sec- oh wait, there it goes again. Changing every second? Yup. Here’s the good news, because we all need some. We will get through this, together. From the Matrix-Radar team, you can be assured we will not take our eyes off the ball and continue to try and help make sense of every new rule and nuance (new-ance?). If you are a Matrix or Reliance Standard client with questions about your leave of absence and disability programs, your account manager will absolutely help – he or she is getting up to speed as we all are. Like you, we are social distancing, work-from-home-ing, loving our families and taking care of business like a boss. Stick with us and stay positive, we will come out stronger, together. 

NEW JERSEY FORGES AHEAD WITH INCREASED PAID FAMILY LEAVE BENEFITS AND JOB PROTECTIONS

Posted On February 27, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

February 27, 2019

 

As the first state to enact a mandated paid family leave law in 2009, New Jersey was the leader in this now-burgeoning field.   Currently, there are 4 states with PFL laws (CA, NJ, NY, RI), 3 more jurisdictions with new laws in the process of being implemented (DC, MA, WA), and 22 states (and counting) that have introduced PFL bills in 2019.

Not resting on its early accomplishments, New Jersey has now enacted a bill (AB 3975, the “Act”) that brings substantial changes and increased coverage to the state’s existing Family Leave Act (NJ FLA), the Security and Financial Empowerment Act (SAFE Act), and the paid family leave insurance program (NJ FLI).  Signed by Governor Murphy on February 19, 2019, some of the changes were effective immediately and others phase in later in 2019 and 2020.

Changes Galore.  The Act is lengthy and makes many changes to New Jersey’s FLA, SAFE Act, and FLI – far more than we can cover in this post. To make it easier to view the changes in context, here  is a link to a chart that provides a comparison of the basic provisions of each law.  Changes are shown in red, bold italics. Removed provisions are shown as such: as strike-through text.  All changes are effective immediately unless otherwise noted.

 

  • Covered relationships. The Act effects a significant expansion of the types of family relationships for which
    employees can take leave or receive benefits pursuant to the NJ FLA, SAFE Act, and NJ FLI.  This includes
    not only added relationships, but also removal of the age limit for care of a covered child with a serious
    health condition under NJ FLA and NJ FLI.  One good result is that covered relationships for whom an
    employee can take leave or receive benefits are now uniform across all 3 laws.   (Effective immediately.)
  • Lower threshold for covered employers. More employers will be required to provide job-protected leave
    under the NJ FLA, as the coverage threshold decreases from employers with 50 or more employees to those
    with 30 or more employees. (Effective June 30 or July 1, 2019 – the Act has conflicting provisions regarding
    effective date.)
  • SAFE Act leave now eligible for benefits. Employees who are, or whose family member is, a victim of
    domestic or sexual violence can now receive FLI benefits for leaves taken for reasons relating to such events.
    (Effective immediately.)
  • Increase in weeks of FLI benefits. Employees will be able to take more paid leave, as the FLI benefits period
    increases from 6 weeks to 12 weeks, or from 42 days to 56 days if taken intermittently.  (Effective for leaves
    commencing on or after July 1, 2020.)
  • Elimination of waiting period. There will no longer be a 7-day waiting period before an employee can receive
    paid leave; rather, benefits will start on the first day of a covered leave. (Effective for leaves commencing on or
    after July 1, 2019.)
  • Increase in benefits payments. Currently, employee benefits under FLI are paid at 2/3 of an employee’s average
    weekly remuneration (AWR), subject to a cap at 53% of the statewide AWR. In 2020 benefits will increase to
    85% of the employee’s AWR, capped at 70% of the statewide AWR.  (Effective for leaves commencing on or after
    July 1, 2020.)  These changes also apply to the state temporary disability benefits.
  • Increase in “wages” measurement. For calendar years beginning on and after January 1, 2020, an employee’s
    “wages” for purposes of contributions to the NJ temporary disability and paid family leave programs will increase
    from 52 times to 107 times the NJ statewide AWR, rounded up to the next higher multiple of $100.
    This rate will be determined as of September 1 each year, to be effective the following January 1.
  • Private plans. A private plan no longer requires approval by a majority of the employees to be covered by the plan
    unless the employees are subject to a collective bargaining agreement that does not expressly waive the
    employees’ 
    right to a majority election as a condition of the plan.  (Effective immediately.)

Employers can obtain more information and state assistance at the New Jersey Division of Temporary Disability and Family Leave Insurance website. The site is not yet up to date with the changes brought by the Act but nonetheless has helpful resources.

Matrix is ready!  Matrix is up to date and is managing leaves and benefits under the New Jersey Family Leave Act, SAFE Act, and Family Leave Insurance program in accordance with the new changes.  If we are administering state leaves of absence and/or the NJ paid family leave for your company the transition will be seamless and your employees will receive the leaves they are entitled to.  For those employers using the NJ state paid leave program, our initial information packets to employees will continue to instruct them to file for FLI with the state.