Family and Medical Leave Act (FMLA) and New Jersey Family Leave Act (NJFLA)

In general, the FMLA requires employers with 50 or more employees to provide employees with up to 12 weeks of unpaid leave in a 12-month period for:

• the birth, adoption, or foster placement of a child
• care of a family member with a serious health condition (the definition of “family member” is limited to the employee’s spouse, child, or parent)
• the employee’s own serious health condition that renders the employee unable to perform the essential functions of his or her job
• an exigency arising out of a family member’s active duty in the armed forces

A new law enacted on February 19, 2019 has created some significant differences between the FMLA and the NJFLA. While it currently applies to employers of 50 or more employees, as of June 30, 2019 it will apply to employers with 30 or more employees. In addition, the NJFLA now entitles employees to take leave for:

• the birth, adoption, or foster placement of a child (which now includes those born via gestational carrier)
• the serious health condition of a family member (which has been expanded significantly, and now includes a child, parent, parent-in-law, sibling, grandparent, grandchild, spouse, domestic or civil union partner, “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”)

Relatedly, the New Jersey Security and Financial Empowerment Act (NJ SAFE Act) also requires employers to provide employees with up to 20 days of unpaid leave in a 12-month period for the care of the employee or a family member (same definition as under the NJFLA) in connection with a domestic violence or sexually violent offense. Reasons for time off can include not only medical care, but also, for example: psychological counseling, obtaining services from a victims’ service organization, temporarily or permanently relocating, obtaining legal assistance, or participating in court proceedings.

Although the federal and state leave laws are similar in some respects, there are significant differences. New Jersey employers must comply with the requirements of both laws.

NEW JERSEY FAMILY LEAVE INSURANCE

The New Jersey Family Leave Insurance program currently provides six weeks of wage reimbursement (at a rate of 2/3 of a claimant’s average weekly wages, up to a maximum weekly benefit of $650 for the year 2019), for employees who take leave to:

• care for or bond with a newborn or adopted child within 12 months of birth or placement
• care for a family member with a serious health condition (same definition of “family member” as under the NJFLA)
• attend to matters related to an occurrence of domestic or sexual violence

The payments that beneficiaries of this law receive are completely funded by payroll deductions from employee wages, and are not employer-funded. Benefits are administered by the New Jersey Department of Labor and Workforce Development, Division of Temporary Disability and Family Leave Insurance.

The benefits under this program will increase on July 1, 2020 to 12 weeks of wage replacement, calculated at 85% of a claimant’s average weekly wage, up to a maximum weekly benefit of 70% of the statewide average weekly wage.

Unlike the FMLA and NJFLA, there is no minimum number of employees for an employer to be covered. Therefore, some employees who are not eligible for unpaid leave under the FMLA and NJFLA may still be eligible for benefits under the Family Leave Insurance program.

While employers used to be able to require employees to use paid sick or vacation time to reduce their Family Leave Insurance benefit, the new law enacted on February 19, 2019 has changed that policy. Now, employees can take paid time off under their employer’s policies in addition to claiming Family Leave Insurance benefits.

JOB PROTECTIONS FOR EMPLOYEES

Under the FMLA and NJFLA, employees who take leave are entitled to return to their job, or a reasonably equivalent job, at the end of the twelve weeks. The FMLA and NJFLA job protections do not extend beyond twelve weeks, even when the employer approves longer leave.

Even though employee rights to reinstatement are limited to 12 weeks, both state and federal law prohibit discharging or otherwise retaliating against an employee because he or she has claimed leave and/or benefits.

AT-WILL EMPLOYMENT

Absent a contract, all employment in New Jersey is at-will. At-will employees may be discharged for good cause, bad cause, or no cause at all. However, an employer may not terminate someone’s employment because of the person’s race, gender, or other protected characteristic, nor in retaliation for lodging complaints (such as discrimination or harassment) or claiming leave or other benefits.

If there is a contract with an employee, the at-will doctrine may not apply. Whether or not there is a contract changing the employee’s at-will status is a sticky issue in New Jersey. A contract for employment may arise from a company policy, a handbook, past practices, or from a verbal promise made by the employer directly to the employee. If an employer takes action inconsistent with its own promises or policies, it could give rise to liability for breach of contract.