COVID-19 Triggers New Jersey Employment Legislation

On March 19, 2020, the New Jersey State Legislature sent Governor Phil Murphy a package of bills in response to the COVID-19 outbreak. Several of these bills are aimed at protecting employees and employers affected by COVID-19. This alert focuses on three separate bills: (1) S2304, which amends New Jersey statutory law regarding sick leave, family leave, and disability benefits; (2) S2301, which prohibits employers from retaliating against employees who have or might have an infectious disease; and (3) S2293, which creates a Temporary Lost Wage Unemployment Program. Governor Murphy already signed the first two bills (S2304 and S2301), while the third bill (S2293) remains pending before the Governor.

S2304: Amendments to Various New Jersey Statutory Laws in the Wake of COVID-19

S2304, which became effective immediately upon Governor Murphy signing the bill into law on March 25, 2020, amends portions of the New Jersey Family Leave Act, the New Jersey Paid Sick Leave Law, and the New Jersey Temporary Disability Benefits Act, to provide increased protections to employees affected by COVID-19. The New Jersey Family Leave Act applies to employers with at least 30 employees, while the New Jersey Paid Sick Leave Law and the New Jersey Temporary Disability Benefits Act apply to all employers regardless of the number of employees.  

The New Jersey Paid Sick Leave Law. S2304 expands coverage for paid sick leave to employees unable to work due to:

1. Closure of the employee’s workplace, or the school or place of care of a child of the employee by order of a public official or because of a state of emergency declared by the Governor, due to an epidemic or other public health emergency;
   
   
2. Declaration of a state of emergency by the Governor or the issuance by a health care provider or the Commissioner of Health or other public health authority of a determination that the presence in the community of the employee or a member of the employee’s family in need of care by the employee, would jeopardize the health of others; or
   
   
3. A state of emergency declared by the Governor, or upon the recommendation, direction or order of a healthcare provider of the Commissioner of Health or other authorized public official, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by the provider or authority that the presence in the community of the employee or family member would jeopardize the health of others.
   
   

The New Jersey Family Leave Act. S2304 broadens the definition of a “serious health condition,” during a state of emergency declared by the Governor, or when deemed necessary by the Commissioner of Health or other public health authority, to encompass an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease. To qualify, the condition must require in-home care or treatment of a family member of the employee due to:

1. Issuance by a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of a family member may jeopardize the health of others; and
   
   
2. Recommendation, direction, or order of the provider or authority that the family member be isolated or quarantined because of suspected exposure to the communicable disease.

In addition, S2304 removed the “key employee” exemptions under the New Jersey Family Leave Act, if the leave is due to the pandemic-related reasons detailed in the amendments to the definition of a “serious health condition.”

The New Jersey Temporary Disability Benefits Act. S2304 broadens the definitions of “serious health condition” and “sickness” during a state emergency declared by the Governor, or when deemed necessary by the Commissioner of Health or other public health authority, to include an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease.  Like the Family Leave Act, the condition must require in-home care or treatment of the employee or family member of the employee due to:

1. Issuance by a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of the employee or family member may jeopardize the health of others; and
   
   
2. Recommendation, direction, or order of the provider or authority that the employee or family member be isolated or quarantined as a result of suspected exposure to a communicable disease.
   
   

S2304 also clarifies that family temporary disability leave includes leave to care for family members suffering from an accident or sickness and that such leave shall be compensable. Finally, S2304 waives the seven-day waiting period for pandemic related temporary disability benefits.

S2301: Prohibition of Retaliation Against Infected or Possibly Infected Employees

S2301 also took effect immediately upon Governor Murphy signing the bill into law on March 20, 2020.  It applies to all New Jersey employers regardless of the number of employees.

This law protects employees from retaliation by their employers during the Public Health State of Emergency declared by the Governor concerning the COVID-19 pandemic, for requesting and/or taking time off from work based on a written or electronically transmitted recommendation from a medical professional licensed in New Jersey that the employee either has, or is likely to have, an infectious disease, which would include COVID-19.

The law provides that an affected employee who has suffered retaliation in violation of the law may file a complaint with the Commissioner of Labor and Workforce Development or initiate an action in court. Moreover, an employer found to be in violation will be ordered to reinstate the affected employee and incur a fine of $2,500 for each violation. Note that regulations under this law issued last week broadly defined “employee,” applying the “ABC Test,” to include some workers formally classified as independent contractors.

S2293: The Temporary Lost Wage Unemployment Program

At present, S2293 is pending before Governor Murphy. It is expected that the governor will sign the bill and create the Temporary Lost Wage Unemployment Program (the “Unemployment Program”). The Unemployment Program provides monetary relief from the Temporary Lost Wage Unemployment Program Fund (the “Fund”) to two different groups.

First, the Unemployment Program provides up to $10 million for actual lost wages in an amount that is equivalent to an individual’s average weekly rate of compensation from the past calendar year, if fully paid leave is not available. This category includes those who have suffered actual lost wages as a result of COVID-19 due to: (1) absence from work to care for a family member; (2) absence from work for the individual’s own illness; (3) absence from work due to school or childcare facility closure; and (4) such other purposes as identified by the Commissioner of Labor and Workforce Development. A qualified individual must fill out an application and provide supporting documentation as required by the Department of Labor and Workforce Development. S2293 will not will not provide monetary relief for any period for which someone receives benefits pursuant to the Unemployment Compensation Law.

Second, the Unemployment Program provides up to another $10 million to employers who pay wages to workers ordered under quarantine by a licensed healthcare practitioner as a result of COVID-19. To seek payment from the Fund, an employer must file an appropriate application and provide documentation as required by the Department of Labor and Workforce Development.

Under S2293, any employee or individual who makes a willful misrepresentation or omission of fact in his or her application for monetary relief from the Fund will be subject to fines.

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.