Locke Lord QuickStudy: New Jersey Employers and the Coronavirus: State Amends Its Sick Leave, Family Leave, and Temporary Disability Benefits Laws Due to COVID-19

As anticipated in our recent QuickStudy concerning certain actions taken by the New Jersey legislature and Governor Murphy to combat the effect of the coronavirus on New Jersey employers and their employees, last week Governor Murphy signed Senate Bill 2304 (S-2304).Effective immediately, S-2304 broadens New Jersey employees’ access to certain employment-related benefits and their rights to use the same – including paid sick leave, family leave, and temporary disability.New Jersey employers should immediately familiarize themselves with S-2304.

As described below, S-2304 amends certain provisions of New Jersey’s Earned Sick Leave Law and expands the rights of New Jersey employees to use earned sick time to cover a period of isolation or quarantine ordered or recommended by a health care provider or public health official as a result of suspected exposure to a communicable disease such as COVID-19 or to care for a family member subject to such isolation or quarantine.S-2304 also amends certain provisions of New Jersey’s Family Leave Act and Temporary Disability Benefits Law, expanding employees’ access to unpaid family leave and temporary disability insurance benefits during a public health emergency if they must take time off from work as a result of being diagnosed with or suspected of being exposed to a communicable disease such as COVID-19 or to care for a family member diagnosed with or suspected being exposed to a communicable disease. 

New Jersey Earned Sick Leave Law

The Sick Leave Law requires most New Jersey employers to provide both full and part-time employees up to 40 hours of earned sick leave per year. Prior to S-2304, employers were required to allow employees to use such earned sick leave to take time off from work for a number of reasons: the employee’s own health condition, to care for a family member experiencing a health condition, when the employee or a family member has been a victim of domestic or sexual violence, when necessary to attend school-related conferences, or where needed to care for a child whose school is closed due to a public health emergency.This latter circumstance certainly would apply in the context of school closures due to COVID-19.

In response to COVID-19, S-2304 expands the reasons that qualify for sick leave, requiring employers to allow their employees to use earned sick leave for any of the following additional reasons that are currently prevalent due to COVID-19:

• A closure of the employee’s workplace, or the school or place of care of a child of the employee by order of a public official or because of a state of emergency declared by the Governor, due to an epidemic or other public health emergency.
• A declaration of a state of emergency by the Governor, or the issuance by a health care provider or the Commissioner of Health or other public health authority, of 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.
• During a state of emergency declared by the Governor, or upon the recommendation, direction, or order of a healthcare provider or the Commissioner of Health or other 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.

New Jersey Family Leave Act

The NJFLA requires New Jersey employers with at least 30 employees to allow certain qualifying employees up to 12 weeks of unpaid family leave to care for or bond with a child within one year of the child’s birth or placement for adoption or foster care, or to care for a family member, or someone who is the “equivalent” of family, who has a serious health condition.

In response to COVID-19, S-2304 broadens the definition of “serious health condition” during a state of emergency declared by the Governor to include illnesses to an employee’s family member caused by an epidemic of a communicable disease (such as COVID-19), a known or suspected exposure to such disease, or efforts to prevent the spread of such disease – which requires in home care or treatment of the employee’s family member.To satisfy the definition, S-2304 additionally requires (i) a finding by either a healthcare provider, Commissioner of Health, or other public health authority that the family member’s presence in the community may jeopardize the health of others and (ii) a recommendation or directive from the healthcare provider or authority that the family member be isolated or quarantined due to suspected exposure to the communicable disease. 

Notably, where the Commissioner of Health or other authorized public official determines that an employee’s family member be isolated or quarantined, S-2304 does not require that a state of emergency exist in order for the family member to satisfy the NJFLA’s definition of “serious health condition.”¹

New Jersey Temporary Disability Benefits Law

The NJDBL provides monetary benefits to New Jersey employees who suffer from a non-work related serious health condition or compensable disability that prevents the employee from working.  Most New Jersey employers are required to provide temporary disability insurance for their employees. S-2304’s expansions to the NJDBL’s definitions of “serious health condition” and “compensable disability” are described in detail below.

Prior to S-2304, the NJDBL defined “serious health condition” as “an illness, injury, impairment or physical or mental condition which requires: inpatient care in a hospital, hospice, or residential medical care facility; or continuing medical treatment or continuing supervision by a health care provider.”Similar to the above-cited expansions to the NJFLA, S-2304 expands the NJDBL’s definition of “serious health condition” during a state of emergency declared by the Governor to include illnesses to an employee or the employee’s family member caused by an epidemic of a communicable disease (such as COVID-19), a known or suspected exposure to such disease, or efforts to prevent the spread of such disease – which requires in-home care or treatment of the employee or the employee’s family member. 

To satisfy the definition, S-2304 additionally requires (i) a finding by either a healthcare provider, Commissioner of Health, or other public health authority that the presence of the employee or family member in the community may jeopardize the health of others and (ii) a recommendation or directive from the healthcare provider or authority that the employee or family member be isolated or quarantined due to suspected exposure to the communicable disease.  Similar to the NJFLA, where the Commissioner of Health (or other authorized public official) makes a particular finding that the employee or family member be isolated or quarantined, S-2304 does not require that a state of emergency exist in order for the employee or family member to satisfy the NJDBL’s definition of “serious health condition.”²

S-2304 similarly broadens the NJDBL’s definition of “compensable disability,” which, as noted above, qualifies an employee for benefits.  Prior to S-2304, an employee suffering from a certain accident or sickness not arising out of and in the course of the employee’s employment was found to have a “compensable disability” and therefore qualified for benefits under the NJDBL.  S-2304 makes clear that during a state of emergency declared by the Governor, the term “sickness” contained within the definition of “compensable disability” includes an illness to an employee or employee’s family member caused by an epidemic of a communicable disease (such as COVID-19), a known or suspected exposure to such disease, or efforts to prevent the spread of such disease – which requires in home care or treatment of the employee or family member.To satisfy the definition, S-2304 additionally requires (i) a finding by either a healthcare provider, Commissioner of Health, or other public health authority that the employee or family member’s presence in the community may jeopardize the health of others and (ii) a recommendation or directive from the healthcare provider or authority that the employee or family member be isolated or quarantined due to suspected exposure to the communicable disease.Similar to the amendments noted above, where the Commissioner of Health (or other authorized public official) makes a particular finding that an the employee or family member be isolated or quarantined, S-2304 does not require that a state of emergency exist in order for the employee or family member to satisfy the NJDBL’s definition of “sickness” and therefore meet the compensable disability requirement of the NJDBL.³

***                  ***                  ***

We continue to closely monitor the actions being taken by the New Jersey legislature and Governor Murphy and have been advising New Jersey employers as to how they can best navigate through this public health and economic crisis.Of course, in addition to these actions in New Jersey, the federal government has taken action to provide further benefits to workers throughout the country. See QuickStudy on the labor and employment law aspect of the CARES Act and QuickStudy related to the Families First Coronavirus Response Act.

NOTE: Because of the ever-changing COVID-19 legal environment, employers should consult with counsel for the latest developments and updated guidance on these topics.