This post was written by Sherri A. Affrunti and Meghan O. Offer.
Provided that the bill is signed into law by Governor Corzine, New Jersey employees will be entitled effective July 1, 2009 to collect up to six weeks of paid family temporary disability leave benefits during any 12-month period (42 days for “intermittent leave”) when caring for children, spouses, domestic or civil union partners, or parents with serious health conditions, or to be with their newborns or newly adopted children during the first 12 months following birth or placement for adoption. As proposed, family temporary disability leave benefits will be paid at the same level as state-funded temporary disability benefits (currently two-thirds of an employee’s weekly wages, up to a maximum benefit rate of $524 for disabilities beginning on or after Jan. 1, 2008).
The bill provides that state family disability leave benefits will be funded through employee tax deductions to be implemented Jan. 1, 2009, unless an employer is covered by an approved private disability plan for benefits during periods of family temporary disability leave, or is exempt from the provisions of the law. Thus, for the 2009 calendar year, each worker covered by the state plan will be required to contribute to the Family Temporary Disability Leave Account an amount equal to 0.09 percent of wages earned (anticipated to be about $33 per year for each employee in the state), in addition to any amount contributed to the State Temporary Disability Benefits fund for their own covered non-occupational illness, accidents or disabilities.
Unless otherwise prohibited by law, the bill permits New Jersey employers to allow or require employees to use up to two weeks of paid sick leave, vacation or other paid time off before collecting family temporary disability leave benefits under the proposed bill. It also permits employers to offset the total number of days of family temporary disability leave benefits paid to an employee during a period of a family temporary disability leave, by the number of days paid by the employer at full pay, not to exceed two weeks. Further, if an employer requires an employee to take two weeks at full pay, its employees must be permitted to take that fully paid leave during the waiting period for state family temporary disability leave benefits.
While the proposed amendments to the New Jersey Temporary Disability Benefits Law provide for the payment of certain family leave benefits, they do not provide for any leave entitlement such as those mandated under the federal Family and Medical Leave Act (“FMLA”) or the New Jersey Family Leave Act (“NJFLA”). Employers should nevertheless be cognizant of the interplay of these Acts if this bill is signed into law – particularly when making decisions on whether to restore employees to their positions following periods of family temporary disability leave. Notably, while the bill states that it is not intended to “increase, reduce or otherwise modify” any right of an employee to return to work under the NJFLA or the FMLA, it provides an express safe harbor from claims—including those alleging discharge in violation of public policy—for small businesses (employing less than 50 employees) not covered by the NJFLA.
Because the bill is expected to be signed into law, employers are encouraged to consult with counsel when drafting and implementing policies; performing any necessary amendments to private temporary disability benefit plans; and responding to requests for leave or benefits; and to assure compliance with statutory amendments when distributing information to employees.
