The New Jersey Family Leave Act and the Family Leave Insurance Law were significantly expanded when Gov. Murphy signed P.L.2019, c.37 in February 2019.
The new changes have caused much head scratching for districts as they strive to comply with the new requirements. The purpose of this article is to review these changes and continuing requirements to make sense of the current state of family leave in New Jersey. The reader may recall that in April 2008, then-Gov. Corzine signed, A-873, the Paid Family Leave bill. The law extends the state’s temporary disability insurance program (TDI) to provide paid family leave benefits.
Family Medical Leave Act (FMLA)
Before reviewing the changes made to the state family leave law, school districts should also recall that the FMLA requires covered employers to provide up to 12 workweeks of job-protected unpaid leave in a 12-month period. Group health benefits must continue to be provided during the period of leave taken pursuant to the FMLA. School districts are covered employers under the FMLA.
FMLA leave may be used for any of the following reasons:
- For the birth and care of the newborn child of an employee;
- For placement with the employee of a child for adoption or foster care;
- To care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition; or
- To take medical leave when the employee is unable to work because of a serious health condition.
Additionally, the FMLA also provides military family leave entitlements.
To be eligible for FMLA leave, an employee must have worked for their employer for at least 12 months and worked 1,250 hours over a 12-month period. Employees may take FMLA leave on an intermittent or reduced schedule basis in some circumstances. The FMLA and its related regulations further allow school districts to restrict when and how leave may be taken in some circumstances to prevent significant disruption to academy instruction. Board members may wish to review their district’s policies on notice requirements for FMLA leave.
An employer may require an employee to submit a certification from a healthcare provider in support of a leave request when the employee requests leave for the employee’s own serious health condition or a covered family member’s serious health condition. Additionally, employees may require second or third medical opinions at the expense of the employer and periodic recertification of the serious health condition.
New Jersey Family Leave Act (NJFLA)
As of June 30, 2019, the NJFLA allows for up to 12 weeks of job-protected family leave for every 24-month period to employees of covered employers to care for a new child or a family member with a serious medical condition.
The new NJFLA amendments apply to a greater number of employers by reducing the employee threshold from 50 employees to 30. Employers are affected even when their employees are not stationed in New Jersey.
Additionally, the amendment to the NJFLA expands the definition of “child” to include foster child and those children who have been conceived using a gestational carrier agreement. The act now provides periods of leave for adoptions; placement of a child into foster care with the employee; childbirth, including childbirth under a valid agreement between an employee and a gestational carrier; and the serious health condition of the employee’s family member.
Significantly, the law expands the definition of “family member” to include parent-in-law, sibling, grandparent, and “any other individual related by blood to the employee and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.”
In conjunction with the above, employees may now take “intermittent” leave upon the birth, adoption or foster care placement of a child without the approval of the employer. Previously, leave for these purposes could only be taken on a consecutive basis unless there was express approval of the employer to take the leave intermittently.
Lastly, the amount of advance notice required will be reduced from 30 days to 15 days when requesting intermittent leave to care for a family member with a serious health condition. For other leave requests, the notice requirement remains 30 days.
School districts may wish to review the requirements for medication certifications provided under the NJFLA.
Members are reminded that NJFLA is only for the care of others and does not cover an employee’s leave to attend to his or her own medical conditions. As discussed in the prior section, the FMLA continues to provide protected leave for an individual to care for his or her own medical conditions and is unchanged by amendments made to the NJFLA.
New Jersey Family Leave Insurance Law (NJFLI)
New Jersey’s temporary disability insurance program provides paid family leave benefits. These benefits are funded through mandatory employee contributions to the “Family Temporary Disability Leave Account” (FTD), which is part of the state-run Temporary Disability Insurance Fund.
Every employer, including school districts, whose employees are covered under the Unemployment Insurance Law, is a covered employer for purposes of FTD. Unlike state FLA and Federal FMLA, employers with less than 50 employees are not exempted.
For leave that commenced on or after Feb. 19, 2019, an employee is eligible to take the leave if, within the base year that precedes the week in which the period of disability commenced or within the base year that preceded the week in which the individual submits a claim for benefits, the employee (1) established not less than 20 base weeks or (2) earned at least 1,000 times the minimum wage under state law that was in effect as of Oct. 1 of the prior year (if not already a multiple of $100, then this amount is adjusted to the next highest multiple of $100).
The weekly benefit is the same as it is under the state’s TDI program. Unless the employee is using his or her own paid leave as may be provided under a collective bargaining or other employee agreement, the employee is paid from the “Family Temporary Disability Leave Account” of the Temporary Disability Insurance Fund. This fund is administered by the New Jersey Department of Labor and Workforce Development.
Payment of benefits to an individual are prohibited:
- for more than six weeks with respect to any one period of family temporary disability leave commencing before July 1, 2020 and more than 12 weeks if the period of leave commences on or after July 1, 2020, or for more than 42 days with respect to any one period of family temporary disability leave commencing before July 1, 2020, and more than 56 days if the period of leave commences on or after July 1, 2020, and is taken on an intermittent basis….
An employee may take family temporary disability leave to:
- Provide care for a family member due to a “serious health condition of the family member;”
- Be with a child during the first 12 months after the birth of the child if the individual or the individual’s domestic or civil union partner is a biological parent of the child, or “is a parent of the child pursuant to a valid gestational carrier agreement;”
- Be with a child during the first 12 months “after the placement of [a] child for adoption or as a foster child with the individual;” or
- Engage in activities for which the employee may take unpaid leave as per the New Jersey Security and Financial Empowerment (SAFE) Act.
The definition of “serious health condition,” “family member,” and “child” mirrors the definitions provided under the NJFLA.
If the employee is eligible for NJFLA or FMLA, the employee must take paid FTD concurrently with those leaves. An employer may permit the employee to use available sick days, vacation or other paid leave, prior to receiving FTD benefits. However, any paid time off days used are in addition to, and not in place of, days that the employee may receive under the FTD disability benefit.
The employee must provide 30 days’ notice for continuous (uninterrupted) leave for a new child before the leave commences. For intermittent leave for a new child, the employee must make reasonable effort to schedule leave so that it does not unduly disrupt operations, and provide not less than 15 days’ notice for intermittent leave before benefits are paid for such leave. For continuous leave requested for the care of a seriously ill family member, the employee must give prior notice in a reasonable and practical manner, unless emergency or unforeseen circumstances preclude it, and make reasonable effort to schedule leave so that it does not unduly disrupt operations. For intermittent leave for the care of a seriously ill family member, barring emergency or unforeseen circumstances, the employee must provide 15 days’ notice and, again, make reasonable effort to schedule leave so that it does not unduly disrupt operations.
The law requires a certification from a health care provider to support a period of family temporary disability leave, with substantially similar requirements to certifications submitted pursuant to the NJFLA.
While the law provides no independent entitlement to job restoration, be aware that the employee may be protected by a myriad of other provisions, including, but not limited to, FMLA, FLA, tenure, or by provisions of the collective bargaining agreement.
If there are more generous provisions in your collective negotiations agreement (CNA), the negotiated provisions will most likely control.
Available paid family leave benefits may depend on whether an employer participates in a state or private plan, among other factors; therefore, school human resource professionals may want to consult with their board attorney if there are questions about these benefits.
This article has been prepared by NJSBA staff to assist board of education members, business administrators, chief school administrators and others in view of the changes to the state family leave law. Please be advised that in an attempt to provide the most up-to-date information possible, NJSBA has written this article for informational purposes only.
Regulations and/or additional changes to federal and state law may change the information in this article. Board members should consult with their district’s board attorney for the most recent information and in regard to questions about the applicability of family leave laws to the district. For more information about family leave laws generally, board members may call the NJSBA Legal and Labor Relations Department at (609) 278-5254.