Signed into law by Governor Murphy on April 14, 2020, the amendment creates additional reasons why an otherwise eligible employee may use job protected family leave when there is a widespread occurrence of an infectious disease. The amendment is retroactive to March 25, 2020.
In addition to the previous justifications for an employee taking family leave, including so the employee can provide care made necessary by reason of the birth or adoption of a child, or the “serious health condition” of the employee’s family member, the amendment creates a whole new category of circumstances that now qualify as a basis for a job-protected family leave.
This new category of family leave applies only if the Governor declares a state of emergency 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. Further, the state of emergency must either:
(1) require in-home care of a child due to a school closure or day care facility closure by order of a public official due to the epidemic or other public health emergency, or
(2) prompt the issuance by a public health authority of a determination, including by mandatory quarantine, because the presence in the community of a family member in need of care by the employee, would jeopardize the health of others, or
(3) result in a 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.
Unchanged by the amendment is the maximum leave time for an otherwise eligible employee of 12 weeks in any 24-month period.
It is important to note that only “eligible” employees may avail themselves of a family leave under the NJFLA. Specifically, that means those employed by a covered employer – one with at least 30 or more employees – who have worked for that employer for at least 12 months;
Further, a covered employer may require the employee seeking an NJFLA leave to obtain a certification to support the epidemic-based reason for the requested leave. Depending on the circumstance, that certification may be furnished by a “duly licensed health care provider,” by the school or day care facility experiencing a closure, or by a public health authority.
Moreover, the exclusion from eligibility for NJFLA family leave for the highest paid 5% of the workforce or the seven most highly paid employees (whichever is greater) does not apply to leaves prompted by an epidemic related to a gubernatorial declaration of a state of emergency
In addition, like with other types of job-protected family leaves, the amendment allows employees to take intermittent leave when it is related to an epidemic.
Also unchanged is the employee’s right to reinstatement upon return from family leave, absent a reduction-in-force.
This is the second amendment to the FLA in approximately 12 months. For information about the previous amendment, please see our previous article: Expansions to the New Jersey’s Family Leave Act.
If you have any questions with regard to your eligibility for these enhanced benefits under the recent amendment to the NJFLA, please feel free to consult with any of the attorneys in our employment law department.