New Jersey Enacts Two COVID-19 Laws Affecting the Workplace – Amendments to Family Leave And Suspension of Certain Provisions in NJ WARN
New Jersey continues to enact laws to address the COVID-19 pandemic. This time it amended both its Family Leave Act and its WARN Act. New Jersey amended its Family Leave Act to guarantee family leave rights and benefits to employees to ensure job protection under the current COVID-19 crisis and other public health emergencies. It also amended its WARN Act to lift certain requirements for employers who have no choice but to lay off their workforce because of the COVID-19 pandemic. Importantly, mandatory severance payments contained in the amendment to the NJ WARN Act put in place January of this year, will not become effective until 90 days after the termination of the current State of Emergency. Both laws are effective immediately and are retroactive to dates in March.
Family Leave Act:
Effective immediately and retroactive to March 25th, the New Jersey “Family Leave Act” (“NJFLA”) was amended to expand family leave benefits during pandemic-related emergencies. Employees are guaranteed up to 12 weeks of leave within a 24 month period to care for a child due to school or daycare closure as a result of the pandemic or to care for a family member affected by or exposed to COVID-19 illness. Governor Murphy signed the law on April 14, 2020.
Under the NJFLA, employees may take leave from their employment for (1) the birth of a child; (2) placement of child by adoption or foster care; and (3) for a serious health condition of a family member. The new law expands these protections under the NJFLA to include the care of family members due to a state of emergency because of a pandemic of a communicable disease, like COVID-19. An employee qualifies for family leave if he or she (1) is required to provide in-home care or treatment of a child because of the closure of the child’s school or daycare because of a pandemic or other public health emergency; (2) is required to care for a family member who is subject to mandatory quarantine or a determination of a public health authority to remain out of the presence of the public; or (3) to care for a family member who must undergo self-quarantine as a result of a suspected exposure to the communicable disease by recommendation of a health care provider or public health authority.
The amendments also detail what must be included in the employee’s certification to justify their leave under the NJFLA.
- To care for a child due to school or daycare closures, the certification must state the date for the closure and the reason for the closure.
- Where a family member was exposed, had a known or suspected exposure, or is quarantined in efforts to prevent the spread, the certification must include the date of the issuance and the probable duration of the determination.
- For circumstances where the employee is taking care of a family member by recommendation of a health care provider or public health authority to undergo self-quarantine due to exposure or a suspected exposure to a communicable disease, the certification must include the date of the recommendation, the probable duration of the condition, and the medical or other facts within the health care provider’s knowledge regarding the condition.
The leave may be taken intermittently so long as the covered employee provides the employer with prior notice of the leave as soon as practicable. An employee must make a reasonable effort to schedule the leave in a manner that does not unduly disrupt the operations of the employer, and if possible provide the employer with the schedule of the day or days of the week when the employee intends to take intermittent leave.
If the employee is taking leave to care for family members due to a communicable disease as a result of the pandemic, the employee is eligible for temporary disability leave benefits. The amendments under the Temporary Disability Benefits Law define disability to include an illness as a result of a pandemic. The seven day waiting period is waived under these circumstances.
New Jersey WARN Act:
After much speculation and anticipation by employers grappling with the effect of COVID-19, New Jersey finally amended its WARN Act (otherwise known as the “Millville Dallas Airmotive Plant Job Loss Notification Act)” to exclude layoffs necessary as a result of the COVID-19 crisis from the Act’s requirements. Additionally, the amendments now exclude layoffs necessary because of a fire, flood, natural disaster, national emergency, act of war, civil disorder or industrial sabotage, decertification from participation in the Medicare and Medicaid programs or if a Nursing Home’s or Hospice Program’s license is revoked pursuant to the Health Care Facilities Planning Act. The law is effective immediately and retroactive to March 9, 2020. Thus, any layoffs that occurred prior to the enactment for the above reasons are excluded from WARN Act notices.
On January 21, 2020, Governor Murphy signed into law amendments to the NJ WARN Act which made several material changes, including mandatory severance payments if a transfer of operations, a termination of operations, or a mass lay off, results in the termination of employment for 50 or more employees, and also changing the notice period from 60 days to 90 days. Originally, the changes were scheduled to go into effect on July 19, 2020. The newly enacted law changes this date, and it will now go into effect 90 days after the Governor’s Executive Order No. 103 declaring a State of Emergency is terminated. For more information regarding the changes, click here.
Should you have any questions, or if you would like to discuss how this new law may impact you, please contact your regular Saul Ewing Arnstein & Lehr labor and employment attorney.