Governor Murphy has signed legislation expanding the New Jersey Family Leave Act (FLA) to allow employees caring for family members during the COVID-19 outbreak up to 12 weeks of job protected leave in a 24-month period. Notably, NJ’s Family Leave Act is applicable to employers with 30 or more employees.
Protected leave under the FLA now includes, in the event of a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, leave from employment made necessary 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:
a) requires in-home care or treatment of a child due to the closure of the school or place of care of the child of the employee, by order of a public official due to the epidemic or other public health emergency;
(b) prompts the issuance by a public health authority of a determination, including by mandatory quarantine, requiring or imposing responsive or prophylactic measures as a result of illness caused by an epidemic of a communicable disease or known or suspected exposure to the communicable disease because the presence in the community of a family member in need of care by the employee, would jeopardize the health of others; or
(c) results in the recommendation of a health care provider or public health authority, that a family member in need of care by the employee voluntarily undergo self-quarantine as a result of suspected exposure to a communicable disease because the presence in the community of that family member in need of care by the employee, would jeopardize the health of others.
An employer may require documentation of the need for the leave. Documentation shall be sufficient, corresponding with reasons a, b and c above, if it includes:
a) the date on which the closure of the school/place of care of the child of the employee commenced and the reason for such closure;
b) the date of issuance of the determination and the probable duration of the determination; or
c) the date of the recommendation, the probable duration of the condition and the medical or other facts within the health care provider or public health authority’s knowledge regarding the condition.
Leave may be taken intermittently if: 1) the covered individual provides the employer with prior notice of the leave as soon as practicable; and 2) the covered individual makes a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employee and, if possible, provide the employer, prior to the commencement of the intermittent leave, with a regular schedule of the day or days of the week on which the intermittent leave will be taken.
These provisions are effective immediately and shall be retroactive to March 25, 2020.
Special considerations
Unlike the Emergency Family and Medical Leave Expansion Act:
- There is no requirement that an employee represent that there is no other suitable person providing care for the child whose school/daycare is closed – meaning, both parents can seemingly take advantage of the NJFLA leave simultaneously. Conceivably, an employee may not be eligible for the EFMLA leave because a spouse is home with the child (or the child is over 14) but they could be eligible for unpaid NJFLA job protection.
- No exemption for healthcare workers
- No exemption for employers with 500 or more
Division of Civil Rights has issued guidance - click here.