What Employers Need to Know About New Jersey’s Expanded Family Leave Act

What is NJFLA?

NJFLA, since its inception in 1989, has required covered employers to provide job-protected leave to eligible employees.  Eligible employees are entitled to take up to 12 weeks of unpaid, job-protected leave during a 24-month period for qualifying family-related reasons. 

NJFLA leave is only available for certain enumerated purposes and differs from other job-protected leave entitlements, such as the Family Medical Leave Act, in that it provides leave to employees to care for others with serious health conditions, but does not provide for leave for an employee’s own health condition.  Employers should note that leave for any employee’s own health condition may be required as a reasonable accommodation, under the Family Medical Leave Act if the employer has 50 or more employees within a 75-mile radius and the employee meets eligibility requirements, or pursuant to other applicable laws.

While NJFLA is “unpaid leave”, New Jersey’s Family Leave Insurance, a program administered by the State and not by employers, provides pay to eligible employees who take family leave. The NJFLA eligibility and implementation requirements have been expanded and amended throughout the years. 

What is new?

As noted, these most recent amendments to the NJFLA cover more employers and more employees.  Specifically, employers with 15 or more employees will now be covered by NJFLA and required to offer leave to eligible employees.  Previously, employers with fewer than 30 employees were exempt from providing NJFLA leave, but, as of July 17th, NJFLA leave is available to employees at smaller employers with 15 or more employees. For purposes of NJFLA, the number of employees is calculated by counting the number of employees “for each working day during each of 20 or more calendar workweeks in the then current or immediately preceding calendar year.”  This calculation is not limited to employees in New Jersey, but, instead is based on the number of employees working for the employer, including those in other countries.

In addition to expanding the number of covered employers, the amendments expand NJFLA coverage to more employees.  Starting July 17th, employees will be eligible for NJFLA after they have worked at least 3 months and 250 hours.  Prior to these amendments, employees had to work 12 months and 1,000 hours. 

The amendments also appear to provide additional employee rights.  For instance, there is language in the law suggesting employers will now be required to provide job restoration rights for employees receiving Temporary Disability Insurance or Family Leave Insurance benefits.  While employers had duties to make reasonable accommodations, job restoration, as is required for NJFLA leave, was not previously required.  Since the eligibility requirements for Family Leave Insurance can be met instances where NJFLA is not available, this could expand job-protected leave even further. The meaning of this language is subject to challenge, however, because the statute also provides that “nothing [herein] shall be construed as increasing, reducing or otherwise modifying any entitlement provided to a worker by the provisions of the ‘Family Leave Act’ [ ] to be restored to employment by the employer after a period of family disability leave.”  Since employees collecting Temporary Disability Insurance and/or Family Leave Insurance benefits are not otherwise entitled to statutory leave, the applicability of the provisions requiring job restoration in the event of non-NJFLA leave is ambiguous.  Employers should expect clarifying regulations from the New Jersey Department of Labor and Workforce Development. 

Finally, the amendments offer clarity in situations where there is a potential for overlapping paid leave benefits.  They provide that an employee may elect whether to use earned sick leave, Temporary Disability Insurance, or family leave insurance.  It is the employee’s prerogative to use these paid benefits in a sequence that benefits the employee, provided that they may not be used concurrently.  Since Temporary Disability Insurance and Family Leave Insurance do not provide for full wage replacement, the overlap prohibition prevents employees from using earned sick leave simultaneously to account for any shortfall.

What else should employers note?

Employers should note that their obligations may expand beyond providing NJFLA leave to employees.  As noted above, employers may have obligations under the Family Medical Leave Act, disability laws, local laws, contracts, and collective bargaining agreements to provide additional leave to eligible employees. 

What are the savvy employer takeaways?

Employee leave laws in New Jersey and beyond are increasingly onerous and challenging to apply, especially due to overlaps in leave requirements and the technical aspects of compliance.  Covered employers should be prepared to implement and offer expanded NJFLA leave to their employees and should work with counsel to design clear guidance and policies that meet the law while serving the interests of the organization. 

If you have any questions about this legal alert or if you run across a related issue in your workplace, please feel free to contact Adam Gersh, Matthew Taylor, or any other member of Flaster Greenberg’s Labor & Employment Department.