New Jersey Amends Its WARN, Family Leave, and Disability Laws to Address COVID-19 Issues

On April 14, 2020, Governor Murphy signed into law a package of bills introduced in the New Jersey State Senate on April 9, in response to the COVID-19 outbreak. S2353, which amends the Millville Dallas Airmotive Plant Job Loss Act (the NJ WARN Act or the Act), relieves employers from the Act’s notice and severance pay requirements for mass layoffs implemented as a result of the pandemic. S2374 amends the New Jersey Family Leave Act (NJFLA) to provide additional coverage for employees who need leave to care for family members affected by COVID-19, and it also amends the Temporary Disability Benefits Law to make technical changes to the definitions of disability, family temporary disability leave, and serious health condition.

S2353: Amendments to the NJ WARN Act

S2353, which became effective immediately upon the Governor’s signature and applies retroactively to layoffs occurring on or after March 9th, amends portions of the NJ WARN Act. That Act requires employers with 100 or more full-time employees to provide 60 days’ notice in the event of a mass layoff, or termination or transfer of operations, that results in the employment termination of 50 or more full-time employees. A “mass layoff” is a layoff of (1) 500 or more full-time employees, without a commitment to reinstate the employees within six months of the layoff; or (2) 50 or more full-time employees representing at least one-third of the full-time workforce at the establishment involved, without a commitment to reinstate the employees within six months of the layoff.

S2353 amends the NJ WARN Act in two ways. First, the bill carves out an exception for mass layoffs which are caused by a fire, flood, natural disaster, national emergency, act of war, civil disorder, or certain other events. Although not expressly referring to COVID-19, the timing and legislative history of the amendment make it clear that the current pandemic falls within the scope of this exception. Thus, any employer conducting a mass layoff as a result of the COVID-19 pandemic is not required to provide notice or severance pay under the NJ WARN Act. This carve out is identical to an exemption already included in the Act’s definition of “termination of operations.”

Second, S2353 delays the July 19, 2020, effective date of the expansive amendments to the Act passed in January. Those amendments will not become effective until ninety days after the termination of the current State of Emergency declared by Governor Murphy in Executive Order No. 103. To recap, the January amendments expand the scope of employers covered by the Act and increase the financial burdens for New Jersey businesses to conduct mass layoffs and termination or transfer of operations.

Once the January amendments become effective, the NJ WARN Act will (1) cover all employers with 100 or more employees, regardless of how many hours the employees work, (2) extend the required notice period from 60 to 90 days, (3) cover layoffs that result in the termination of 50 or more employees at, or reporting to, an establishment within any 30 day period regardless of whether the 50 employees equate to at least one-third of the employees at the establishment, (4) guarantee severance to employees who are laid off as a result of a covered event in the amount of one week’s pay for every year the employee worked for the employer (this is increased to four weeks’ pay if the employer fails to provide proper notice), (5) consider all terminations that an employer makes in the state, rather than at a single place of employment, and (6) make it more difficult to obtain an employee’s waiver of rights under the Act.

S2374: Amendments to the New Jersey Family Leave Act

S2374 also took effect immediately upon signing. The law applies retroactively to leave taken on or after March 25, 2020. This is the second time the NJFLA has been amended in response to the pandemic. (See our prior alert here).

This amendment broadens the definition of “family leave” during a state of emergency to allow employees to take leave to care for a family member when that leave is made necessary by an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease. “Family leave” under the New Jersey Family Leave Act now includes:

1. Leave for an employee to care for his or her child whose school or child care facility has been ordered closed by a public official as a result of a pandemic or other public health emergency;
2. Leave for an employee to care for a family member who is sick as a result of an epidemic of a communicable disease or known or suspected exposure to a communicable disease; or
3. Leave for an employee to care for a family member who a health care provider or public health authority has recommended should self-quarantine as a result of suspected exposure to a communicable disease.

The law allows eligible employees to take up to 12 weeks of unpaid job-protected leave in a 24-month period and applies to employers with at least 30 employees.

Ballard Spahr’s Labor and Employment Group is closely following state and local COVID-19 legislation and other developments related to COVID-19 as they impact the workforce. If you have questions, please contact any member of the Labor and Employment Group for advice about your situation.

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