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COVID-19: NJ Expands Earned Sick Leave & Temporary Disability Benefits for Public Health Emergencies

April 02, 2020

New Jersey has enacted an expansion of the state’s Earned Sick Leave and Temporary Disability Benefits (including Family Temporary Disability Benefits) for situations related to the coronavirus (COVID-19) as well as other public health emergencies as determined by the public health authorities and/or when the governor declares a state of emergency. This Act is effective immediately.

Employers should note the Act’s expansion of coverage for leave and benefits, explicitly protecting efforts to avoid COVID-19 exposure through isolation as well as quarantine after suspected exposure. The Act does not change the amount of leave available, maximum benefits available, or documentation requirements under existing law.

Employees are now eligible for Earned Sick Leave if they cannot work (1) during a declared state of emergency, or (2) at the recommendation of a public health authority or healthcare provider, because

  • the employee’s workplace is closed due to an epidemic or public health emergency;
  • the employee’s child has their school or childcare closed due to an epidemic or public health emergency;
  • the employee’s presence in the community would jeopardize the health of others;
  • the presence of a family member needing the employee’s care in the community would jeopardize the health of others;
  • the employee undergoes isolation or quarantine after suspected exposure to a communicable disease; or
  • the employee cares for a family member in quarantine after suspected exposure to a communicable disease.

The recent federal Family Medical Leave Act (FMLA) expansion, applicable to employers with fewer than 500 employees, allows employees to take leave for several reasons related to COVID-19. But the Act allows employees in New Jersey to use Earned Sick Leave in certain situations for which federal FMLA would not necessarily be available—for example, if their workplace closes.

During a declared state of emergency or when a public health authority indicates it is necessary, employees in New Jersey are now eligible for Temporary Disability Benefits when they need leave for themselves or to care for a family member (as Family Leave subject to Family Temporary Disability Leave benefits). During a public health emergency, “serious health condition” includes illness caused by an epidemic of a communicable disease, known or suspected exposure to a communicable disease, or efforts to prevent the spread of a communicable disease. It must require in-home care or treatment for the employee or their family member, and (1) the individual’s presence in the community would jeopardize the health of others, or (2) be due to a recommendation that the individual be isolated or quarantined because of suspected exposure to the communicable disease. Finally, the Act eliminates the usual seven-day waiting period for benefit eligibility for epidemic-related benefits.

Considerations for Employers

Employers should keep in mind that employees cannot “double-dip” to collect multiple benefits at once. Employees must choose between benefits such as Earned Sick Leave, Temporary Disability Benefits, and unemployment (if they have lost work). An exception to the rule would be employees working reduced schedules, who may receive partial unemployment benefits, but may still use Earned Sick Leave during the time they are scheduled to work.

Notably, this Act expands coverage in uses of Earned Sick Leave and Temporary Disability Benefits by explicitly protecting employee efforts to isolate to avoid exposure or to quarantine after suspected exposure. As written, the Act could potentially cover all employees who choose to use leave during the current state of emergency, where everyone is encouraged to stay home and thereby safeguard the health of others in the community. Consequently, employers should carefully consider employee requests to determine if they fall into one of the broadly defined protected uses for employees to protect themselves from COVID-19, and to care for sick or quarantined family members.

Additionally, another New Jersey law prompted by COVID-19 now prohibits employers from penalizing employees in any terms or conditions of employment for taking or requesting time off from work. The employee’s request must be based on a medical professional’s written recommendation that the employee should take specified time off and is likely to have an infectious disease that could infect others in the workplace. Under proposed rules, employers may still conduct planned reductions in force or layoffs, but otherwise the employee must be reinstated in their prior position or an equivalent position upon return to work.       

These changes in law are largely consistent with the New Jersey Department of Labor (NJDOL) guidance recently issued, in which the NJDOL interpreted existing law to apply to sickness and/or care for family members who may be sick with COVID-19. Moreover, while numerous changes have been put in place as a response to COVID-19, most are permanent and potentially will be used during any future public health crisis. Employers should scrutinize employee requests for time off with an eye toward the wide latitude provided by New Jersey law during the COVID-19 crisis.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Princeton
August W. Heckman, III
Michelle Seldin Silverman
Needhy Shah