In response to COVID-19, yesterday the New Jersey Senate made significant changes to the New Jersey Family Leave Act (“NJFLA”) and proposed changes to the Millville Dallas Airmotive Plant Job Loss Notification Act (the “mini-WARN Act”). Changes to the NJFLA
As to the NJFLA, the Senate expanded the law to cover situations that stem from coronavirus, such as school closures and the quarantine of a family member. In keeping with the history of the NJFLA, the amendment does not cover an employee for time off to deal with his or her own COVID-19 related illness.
While the recent federal legislation known as the Families First Coronavirus Response Act (“FFCRA”) amended the federal Family and Medical Leave Act (“FMLA”) to provide up to ten weeks of paid family leave to care for a child home due to school or daycare closure, this state legislation provides for job protection and unpaid leave in the event of a state of emergency declared by the Governor or when indicated by the Commissioner of Health or other public health authority due to an epidemic of a communicable disease which requires (1) in-home care of a child due to closure of a school or daycare, (2) mandatory quarantine of a family member in need of care by the employee or (3) a family member in need of care by the employee who undergoes self-quarantine.
This leave can be used intermittently and is also covered by New Jersey’s Temporary Disability Benefits Law. The amendment does away with the seven-day waiting period for disability benefits. Like other leave under the NJFLA, an employee can take up to 12 weeks of unpaid leave in a 24-month period.
Proposed Changes to NJ’s mini-WARN Act
The New Jersey Senate is also considering changes to the State’s mini-WARN Act.
Starting in mid-July, 2020, that law will require employers with at least 100 employees to pay one week of severance for every year of service as part of a “mass layoff,” defined as any reduction in force which results in terminations in any 30-day period of 50 or more employees. However, the proposed changes include an exclusion for a mass layoff resulting from the coronavirus pandemic.
Moreover, the Senate is considering moving the effective date of this law to 90 days after the end of the state of emergency declared by the Governor. In other words, the proposed change will enable New Jersey employers to avoid having to pay severance to employees discharged due to the coronavirus.
Employers should be gearing up for a possible outbreak of coronavirus in their geographic areas. This includes establishing certain safety precautions as well as issuing a policy concerning certain protocols to be followed in the workplace. The policy should include:
notification concerning how the virus is transmitted;
the incubation period of the virus;
whether the Company will provide any protective clothing;
for companies in certain industries, the guidelines OSHA has issued; and
steps the Company wants employees to follow including hand washing, working from home, providing a doctor’s note before returning to work, etc.
Policies need to be in conformity with the requirements of the Americans with Disabilities Act (“ADA”) and state disability laws such as the New Jersey Law Against Discrimination (“NJLAD”) concerning inquiring about employee’s health and the need to provide any reasonable accommodations. Leaves of absence also may be necessary and must comply with the federal Family and Medical Leave Act (“FMLA”) for employers with at least fifty (50) employees and the New Jersey Family Leave Act (“NJFLA”) for employers with at least thirty (30) employees. Employers should also review the EEOC’s guideline entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” We are here (or working remotely) should you need further guidance.