New Jersey Family Leave Act - Legislative Guidance

Table of Contents

Overview

New Jersey Family Leave Act(NJFLAAA) offers eligible employees up to 12 weeks of unpaid, job-protected time away from work to care for a family member, bond with a new or newly placed child, and to attend to matters rising out of a state of emergency. This leave is not for the employee’s own health conditions.

The New Jersey Department on Civil Rights has jurisdiction over the law, and is used as the basis for the New Jersey Paid Family Insurance program.

AbsenceSoft Policies

New Jersey Family Leave is configured in AbsenceSoft with the policy code and naming below:

• New Jersey Family Leave – NJ-FML

Legislation codes and statues

The information presented in the guidance relates to the following legislative codes, links to the specific legislation can be found within the ‘Resources’ section of this document :

• New Jersey Statues Title 34, Chapter 11B, section 11B-1 - 11B-16 (N.J.S.A. §34:11B-1 - §34:11B-16)

• New Jersey Administrative Code Title 13, Chapter 14, Sections 1.1-1.11 (N.J.A.C. §13-1.1 - §13:14-1.11)

Employer Coverage

Employs 30 or more employees for each working day during each of 20 or more workweeks in the current or preceding calendar year. The employee count includes all employees at the employer not just those in New Jersey.

Employee Eligibility

Employees must work 12 months for the employer, 1,000 base hours¹ in the previous 12-months of employment, have a qualifying reason, and applicable family member for leave.

For base hours, the regulations allow an employer to also include any paid leave offered to employees such as sick pay, personal pay, PTO, etc., otherwise only the hours worked should be included in calculating the 1,000 hours. If an employee is furloughed due to a public health emergency the furlough should not negatively impact their base hours.

There are special considerations for top earners as well, known as a key employee provision, which impacts reinstatement rights. ²

Qualifying Absence Reasons and Leave Duration

Leave can be taken for up to 12 weeks in a 24-month period. The 24-month period is determined by the employer.

Family Leave

• Adoption/Foster Care: bond with a child during the first year after placement through adoption or foster care.

• Bonding: bond with a new child during the first year after birth.

• Family Health Condition: Care for a family member with a serious health condition.

There are certain situations where the following will apply during states of emergency declared due to a communicable disease or other natural disaster:

• Employee Caring for Individual Isolated/Quarantined: when a family member’s exposure to or is susceptible to a communicable disease results in an order for isolation of the family member.

• Care for Family Member during State of Emergency: in-home care or treatment needed by the family member.

• Care of a child due to place of care/school closure: during a state of emergency where schools or the location the child would typically receive care is closed.

• Care of child due to public health emergency: in-home care or treatment needed by employee’s child.

Qualifying Family Member

• Child (of any age for family care, child of a parent, adopted, stepchild, foster, legal ward, surrogate child, or has a parent-child relationship/in loco parentis, domestic partner’s child, or civil union partner’s child). Children under the state of emergency pertains to children of school age.

• Parent (Parent-in-law, stepparent, legal guardian, foster or adoptive parent, parent-child relationship, surrogate parent)

• Sibling

• Grandchild for care of a child; not school closure

• Grandparent

• Spouse

• Domestic Partner or Civil Union Partner

• Any individual related by blood or marriage

• Any individual the employee deems has a familial relationship with them

How Leave Can be Taken

Employees may take leave consecutively, intermittently, or reduced schedule for any qualifying reason.

• Consecutive leave: A continuous, uninterrupted period of leave taken for a single qualifying reason.

• Intermittent leave: Leave taken in separate, sometimes unpredictable, blocks of time (either hours, days or weeks) between the start and end dates of leave.

• Reduced schedule: A reduction to the employees’ work schedule that results in either fewer hours per day or fewer days per week. A reduced schedule is consistent from one week to the next.

Certification Requirements

Depending on the reason for leave the law provides distinct certification requirements. In all circumstances, an employer can require the employee complete a signed verification that only confirms the employee their need/reason for leave is for the purpose requested. There is no timeframe indicated for the information to be returned to the employer, however, the employer should indicate the repercussions for not providing the requested documentation.

Additional documentation may be requested or required by the employer but must meet the standards noted below:

• Bonding/Adoption/Foster Care:

  • Employers may request a statement from the healthcare provider or other authority that contains the placement or date of birth.

• Care of a Family member:

  • From a healthcare provider that establishes:

    • A serious health condition exists through medical facts provided;

    • Dates on estimated duration, and when the health condition commenced.

• State of Emergency situations:

  • Care of child due to public health emergency/ Care of a child due to place of care/school closure: date the school is closed, reason for closure, or date the care of the employee was requested.

  • Employee Caring for Individual Isolated/Quarantined: date of recommendation, duration, medical facts provided by a healthcare provider or other public health employee.

  • Care for Family Member during State of Emergency: date of recommendation, duration, provided by a healthcare provider or other public health employee.

Pay and Benefits

Where state pay benefits are involved with other law interactions, such as a state mandated sick pay, employers will want to consider where PTO/employer pay benefit application should occur.

Use of Paid Time Off (PTO)

New Jersey allows an employer to follow its practices and policies when requiring or not requiring PTO usage. Employers should uniformly apply their practices as to not treat those eligible for NJFLA differently from those that are taking leave under different policies.

Job Protection

Employees should be returned to the same or equivalent position with same status, benefits, pay and other terms of previously held prior to leave. ³

Other Protections

Employees who invoke their right to NJFLA are protected from retaliation. Employers are prohibited from penalizing or interfering with employee rights under NJFLA including when an employee requests, asks for information regarding the law, or files a compliant for employer violations of the law.

Benefits

If an employer provides benefits other than health benefits, to employees on similar employer family leave policies, the employer must also provide those benefits to employees on NJFLA.

Employees should retain their benefits while on NJFLA leave in the same manner they support benefits to other employees on other company leaves.

Interaction with Other Laws

Where an employee meets the definition of family member, qualifying absence reason, or serious health condition, the state and federal laws may interact. Accommodations that are not leave related, would not run concurrently with other state or federal leave laws.  

Family and Medical Leave Act (FMLA)

FMLA and NJFLA may run concurrently where the same circumstances and family relationships are applicable.

New Jersey Temporary Disability Insurance(NJTDI)

NJTDI and NJFLA typically do not run concurrently. There are limited situations where an employee may continue disability payments but also take NJFLA leave. ⁴ Determinations are made by the state(unless employer has a state approved  equivalent plan), the employee will need to contact the state to begin a claim.

New Jersey Paid Family Leave Insurance(NJPFL)

NJFLA may run concurrently with NJPFL when a family member has a qualifying medical condition. Determinations are made by the state(unless employer has a state approved  equivalent plan), the employee will need to contact the state to begin a claim.

New Jersey Pregnancy Disability Leave (NJPDL)

NJFLA may run concurrently with NJPDL in very nuanced circumstances.

New Jersey SAFE Act (NJSAFE)

NJFLA may run concurrently with NJSAFE where applicable relating to qualifying family members.

Employee and Employer Responsibilities

Employee Responsibilities

• Notify employer varying timeframes depending on the situation:

  • Intermittent bonding or care of a family member: at least 15 days’ notice prior to the start of leave or as soon as possible during emergency or state of emergency;

  • Bonding consecutive: at least 30 days advance notice, unless emergency;

  • Care of a family member consecutive: as much notice as possible unless emergency;

• Provide requested verification and/or certification; and

• Follow proper call out and employer policies

Employer Responsibilities

• Posting requirements are as follows and all posters must be a place that is conspicuous/frequented by employees:

  • Display the official poster provided by the Division in places that employees regularly gather or convene. Poster must be on at least letter size paper and legible;

  • The rights and reasons to take leave under NJFLA must be included in any written documentation provided to employees such as handbooks. If there is no such written documentation, the employer must give written notice to each individual employee (the NJFLAA fact sheet maintained by the Division can complete this requirement);

• Determine the employer 24-month measurement period;

• Provide information to ‘key employee’ where applicable;

• Ensure PTO policies align with NJFLA; and

• Decide on required documentation.

Resources

New Jersey Division on Civil Rights: https://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/new-jersey-family-leave-act/

New Jersey Legislation:

Statues N.J.S.A. 34:11B

Administrative Code N.J.A.C. 13:14

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