By Francine Foner, Esq., and Ty Hyderally, Esq.

The recently enacted American Rescue Plan Act of 2021, signed by President Biden on March 11, 2021, does not extend into 2021 the emergency paid leave provisions under the Families First Coronavirus Response Act (FFCRA).  However, New Jersey employees who have had to take leave from employment due to COVID-19 related issues, such as for their own or a family member’s health issue, or school or daycare closings, will continue to be able to take paid leave as long as New Jersey remains in a declared state of emergency.

New Jersey’s Family Leave Act (NJFLA), together with New Jersey Family Leave Insurance (NJFLI), will continue to provide some relief for New Jersey employees who need to take leave during a declared state of emergency.  As discussed in our July 4, 2020 blog, on February 19, 2020 (A3975) and April 14, 2020 (S2374), Governor Murphy signed into law provisions expanding the protections afforded by New Jersey’s paid family leave program. (Great News for New Jersey Employees – Major Expansions in the Paid Family Leave Program).  The New Jersey Legislature expanded the NJFLA to allow eligible employees to take leave during a declared state of emergency to: (1) care for a family member, or someone who is the equivalent of family, who has been isolated or quarantined at the direction or recommendation of a public health authority or health care provider because of suspected exposure to a communicable disease; or (2)  provide required care or treatment for a child if the child’s school or place of care is closed by order of a public official due to an epidemic of a communicable disease or other public health emergency.  While the employer is not required to pay for this leave, as of July 1, 2020, the amount that employees can receive in weekly benefits under New Jersey’s Temporary Disability Insurance and FLI has been increased to 85 percent of their weekly wage (an increase from two-thirds of their weekly wage), with a maximum benefit, based upon State averages, of $881 per week, up from $667.  

On March 1, 2021, the New Jersey Division on Civil Rights (DCR) published proposed rule amendments incorporating the changes to the NJFLA enacted by recent legislation, including the 2020 amendments related to leave during a public health emergency.  Some of the proposed rule amendments relating to NJFLA leave taken due to a public health emergency, such as the COVID-19 pandemic, are:

• Defining “closure of a school or place of care” to “clarify that a school or place of care is considered closed when the school requires the child to participate only virtually, either full time or on particular days as part of a hybrid model. However, a school or place of care is not considered closed when an employee chooses to keep their child home even though the school or place of care is open for in-person instruction.”

• Amending the definition of “disrupt unduly the operations of the employer” to “create a presumption that an intermittent or reduced leave schedule for an employee to care for a family member who has been diagnosed with a communicable disease, or is suspected of having a communicable disease, would disrupt unduly the employer’s operations.”  In addition, “the presumption would apply unless the employee does not come into contact with others while working or can work remotely during the leave.”  According to the DCR’s comments to it proposed rule amendments, this presumption is designed to ensure that an employee who is exposed to a family member who has or might have a communicable disease would not be present in the workplace if their presence would put others at risk of contracting the communicable disease.  This section would further be amended to specify that nothing in the section precludes an employer from requiring an employee to work remotely while taking intermittent or reduced leave to provide care for a family member who has been diagnosed with a communicable disease or is suspected of having a communicable disease.

• Amending “intermittent leave” to include leave which is scheduled in increments smaller than a week.

• Amending the definition of “eligible employee” to “include individuals who have been laid off or furloughed within the previous 90 days by an employer due to that employer curtailing operations because of a state of emergency.”

• Amending the definition of “employer” to be consistent with the recent amendments to the NJFLA as including “any employer that employs 30 or more employees, whether employed in New Jersey or not, for each working day during 20 or more calendar workweeks in the current or immediately preceding calendar year.”

• Amendments to the rules “to reflect the new certification requirements for leave to care for a family member due to an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease.”

53 N.J.R. 352.

The proposed rule amendments that are ultimately adopted may differ from the initial version, based upon comments which the DCR receives, which may be submitted by the public until April 30, 2021.  While most of the proposed changes are favorable for individual employees, there are also proposed amendments which attempt to balance the needs of employers to maintain a safe working environment for their staff who remain in the workplace.

En nuestra firma hablamos español. This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.