N.J. Amends Family Leave Act Regulations To Align With Federal Law

The New Jersey Division on Civil Rights ("Division") amended the regulations interpreting and implementing the New Jersey Family Leave Act ("NJFLA"), N.J.S.A. 34:11B-1 et seq., on March 5, 2007. Although significant differences remain between the two laws, these changes should simplify administration and compliance for New Jersey employers covered by both laws. The following summarizes the amendments:
  • The definition of "base hours," used to determine an employee's eligibility for NJFLA, has been amended to include hours an employee would have worked, but for an absence from work for a period of time due to military service. N.J.A.C. 13:14-1.2.
  • The definition of the term "care" has been expanded to include the time needed to arrange for changes in care of a family member, such as for placement in a nursing facility. N.J.A.C. 13:14-1.2.
  • The definition of the term "employer" has been broadened to include the State, any political subdivision thereof, and all public offices, agencies, boards and bodies. N.J.A.C. 13:14-1.2.
  • The new regulations provide explanation of the phrases "continuing medical treatment" and "continuing supervision by a health care provider" as they are used to define the term "serious health condition" to include: (1) a period of incapacity of more than three days that also involves treatment two or more times by a health care provider or treatment by a health care provider on one occasion which results in a regimen of continuing treatment; (2) any period of incapacity due to pregnancy or for prenatal care; (3) any period of incapacity or treatment due to a chronic serious health condition; (4) any period of incapacity, which is permanent or long term, due to a condition for which treatment may not be effective; or (5) any period of absence to receive multiple treatment for restorative surgery or other injury, or for a condition that would likely result in a period of incapacity for more than three consecutive days in the absence of medical intervention or treatment, such as cancer, severe arthritis or kidney disease. N.J.A.C. 13:14-1.2.
  • The definition of "employer" now includes government entities regardless of the 50-employee requirement applicable to private businesses. N.J.A.C. 13:14-1.3(b).
  • To determine how to measure the 24—month period in which the 12 weeks of leave shall be granted, employers may now adopt the same methods used for determining the 12-month period in which the FMLA leave entitlement occurs. Those methods include a calendar year, a fixed "leave year" such as a fiscal year, a 24-month period measured forward from the date any NJFLA leave begins, and a "rolling" 24-month period measured backward from the date an employee uses any NJFLA leave. N.J.A.C. 13:14-1.4(c).
  • The NJFLA notice period has been expanded from 15 days to 30 days for an employee who takes a leave in connection with a serious health condition of a family member. The rule still exempts employees from the 30-day notice requirement where emergent circumstances warrant shorter notice. N.J.A.C. 13:14-1.5(d)1.
  • The amended regulations provide that when an employee requests leave on an intermittent or reduced leave basis, an employer may transfer the employee to an alternative position with equivalent pay and benefits during the course of the leave period, if the alternative position better accommodates recurring periods of leave than does the employee's regular position. The new regulations, however, prohibit an employer from transferring an employee to an alternative position in order to discourage the employee from taking leave or to otherwise work a hardship on the employee. N.J.A.C. 13:14-1.5(d)4
  • The regulations include language to clarify the relationship between the NJFLA and FMLA related to pregnancy, childbirth and caring for a newborn child by specifically providing that when "an eligible employee is on disability leave while pregnant for four weeks and is on disability leave following childbirth for an addition six weeks, those 10 weeks that the employee is on disability leave count against the employee's FMLA entitlement only, and the employee retains the full 12-week entitlement under the Act for the care of the newly-born child." N.J.A.C. 13:14-1.6
  • With regard to multiple requests for family leave from members of the same family, the regulations specifically provide that an employer must grant leave to both a husband and a wife, provided they are otherwise eligible. N.J.A.C. 13:14-1.12.
  • Employers are required to provide notice to each of its employees concerning leave under the NJFLA. The notice requirements include displaying the official Family Leave Act poster of the Division on Civil Rights and including information about entitlements under the NJFLA in the handbook or other written guidelines maintained by employers concerning benefits and leave rights. Employers that do not maintain such handbooks are required to provide written guidance to employees regarding the employee's rights and obligations under the NJFLA. N.J.A.C. 13:14-1.14 (a) and (b).

The amendments should facilitate administration of family leave for employers that are covered by both laws. A number of important statutory differences, however, remain. For example, the FMLA provides leave for an employee's own serious medical condition, but the NJFLA does not. In addition, the NJFLA limits leave to 12 weeks in a 24-month period, where the FMLA provides 12 weeks of leave in a 12-month period. Further, under the NJFLA employees must be employed for at least 12 months and have worked 1,000 base hours in the 12-month period preceding the leave request to be eligible for leave. The FMLA, however, requires employees to work at least 1,250 hours during the 12-month period preceding leave. Of important note, the NJFLA's definition of family member was recently expanded to include "one partner in a civil union couple." The FMLA does not provide benefits to civil union couples. Similarly, the NJFLA, but not the FMLA, permits leave for care of a parent-in-law.

Employers are now required to post New Jersey Division on Civil Rights' official NJFLA poster. In addition, employers that maintain handbooks and/or written policies regarding benefits and leave rights must include written guidance regarding employees' NJFLA rights and obligations. Employers that do not maintain handbooks or written policies are required to provide separate written guidance to each of its employees regarding the employee's rights and obligations under the NJFLA.

Of additional note, a bill providing for paid family leave is before the New Jersey Senate. The bill seeks to amend the Temporary Disability Benefits Law, N.J.S.A. 43:21-25 et seq., which currently provides up to 26 weeks of benefits payments to employees who are unable to work because of illness or disability. The proposed bill provides up to 12 weeks of paid leave for an employee to care for: (1) a child for the first 12 months following the child's birth or adoption; or (2) a family member suffering a serious health condition. Employees may qualify for this benefit even if they are not eligible for FMLA or NJFLA leave. The program would be funded by employee payroll deductions at a proposed level of 0.1% of salary.

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Please feel free to contact Maxine H. Neuhauser or Denise Merna Dadika in the firm's Newark office if you have any questions or comments. Ms. Neuhauser may be reached at 973-639-8269 or [email protected]. Ms. Dadika may be reached at 973-639-8294 or [email protected].

This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligation on you and your company.

© 2007 Epstein Becker & Green, P.C.