ATTENTION EMPLOYERS: TOP 10 TAKEAWAYS FROM THE RECENTLY-ISSUED NEW JERSEY FAMILY LEAVE ACT GUIDANCE

By Melanie M. Ghaw, Esq. and Rachel H. Khedouri, Esq.

On February 20, 2024, New Jersey Attorney General Platkin and the Division on Civil Rights (“DCR”) announced that the DCR had created a “comprehensive guidance document” to address frequently asked questions and provide clarity regarding coverage, protections, and requirements under the New Jersey Family Leave Act (“NJFLA”). As a reminder, the NJFLA requires covered employers to provide eligible employees with unpaid job-protected leave in specific circumstances, including to care for the serious health condition of a family member, to care for or bond with a child, and for certain qualifying circumstances during a state of emergency.

Summarized below are ten important takeaways from the NJFLA FAQs; the full guidance is available HERE.

No. 1: Who is an “Eligible Employee” under the NJFLA? (FAQ 3, 10, 12, 13)

To be eligible for protection under the NJFLA, the employee must:

• Work full-time or part-time for either (1) a state or local government agency with at least one employee, or (2) a company or organization with 30 or more employees worldwide;
• Be employed by the employer for at least one year;
• Have worked at least 1,000 hours during the preceding 12 months; and
• Take leave for a qualifying reason under the NJFLA.

Notably, an employer’s headquarters does not have to be in New Jersey and an employee does not have to reside in or complete all their work in New Jersey for the NJFLA to apply. Rather, an employee’s eligibility depends on a variety of factors, including:

• Whether the employee works in New Jersey;
• Whether the employee’s base of operations or the place from which the employee’s work is directed and controlled is in New Jersey;
• How frequently the employee conducts work outside of New Jersey;
• Whether the employee and employer have an understanding regarding the state in which the employment is based; and
• Whether the employee’s tax and benefit treatment suggest they are a New Jersey employee. For example, an employee who pays into the New York unemployment system is generally considered a New York employee to whom the NJFLA does not apply.

No. 2: How Should Employers Calculate the 1,000 Hours Eligibility Requirement? (FAQ 7, 8)

To determine whether an employee has worked at least 1,000 hours during the preceding 12-month period, the employer must take into account “base hours,” including:

• Hours of work for which the employee is compensated, including overtime hours;
• Hours for which an employee receives workers’ compensation benefits;
• Hours an employee would have worked but for participation in military service; and
• At the employer’s option, hours during which the employee receives other types of compensation, such as vacation, or personal, administrative, or sick leave.

The federal Family and Medical Leave Act (“FMLA”) also credits employees for hours of work that would have been performed but for participation in USERRA-covered military service; however, unlike the NJFLA, the FMLA does not count hours taken during an employee’s paid or unpaid leave, including time for which an employee receives workers’ compensation benefits.

If an employer reduces operations due to a state of emergency, any time during which an employee is laid off or furloughed up to a maximum of 90 calendar days must be counted toward the 1,000-hour eligibility requirement. Base hours during a layoff or furlough are calculated based on the average number of hours worked per week during the rest of the 12-month period, which are then added to actual hours worked while not on furlough or leave. If the total hours are at least 1,000 hours for the past year, the employee may be eligible for protection under the NJFLA when they return to work.

No. 3: What Types of Leave does the NJFLA Cover? (FAQ 1, 2, 4, 6, 9, 25)

The NJFLA allows eligible employees of covered employers to take up to 12 weeks of unpaid job-protected leave in a 24-month period for the following reasons:

• Child-Bonding: To care for or bond with a child – leave must begin within one year of the child’s birth or placement for adoption or foster care;
• Caregiving: To care for a family member or someone who is the equivalent of family, with a serious health condition;
• Caregiving related to a State of Emergency: During a “state of emergency” (which includes any natural or man-made disaster, or emergency that has been declared a “state of emergency” by the President of the United States, the Governor of New Jersey, or a municipal emergency management coordinator):

• • To care for a family member, or someone equivalent to family, who is isolated or quarantined due to suspected exposure to a communicable disease,
  • To provide required care or treatment for a child if their school or place of care is closed by order of a public official due to an epidemic of a communicable disease or other public health emergency.

  As a reminder, the NJFLA, unlike the FMLA, does not provide leave for an employee’s own medical condition.

  No. 4: What Constitutes “Care” under the NJFLA? (FAQ 14)

  The FAQs make clear that the definition of “care” under the NJFLA is broad, including not just physical care, but also emotional support, as well as visitation, assistance in treatment, transportation, arranging for a change in care, assistance with essential daily living matters, and personal attendant services.

  No. 5: Does the NJFLA Apply to Pregnancy and Recovery from Childbirth? (FAQ 6, 20)

  Although the NJFLA provides eligible employees with leave time to care for or bond with the employee’s newborn or newly placed child, it does not provide leave for an employee’s own disability. Employees seeking leave to care for their own pregnancy-related disability or recovery from childbirth may take leave under the FMLA, provided they meet eligibility requirements. However, eligible employees may take NJFLA leave to care for a family member with a pregnancy-related disability or who is recovering from childbirth.

  No. 6: How Should Employers Calculate the 24-Month Period? (FAQ 11)

  Although the NJFLA looks at a 24-month period and the FMLA considers a 12-month period, the methods of calculation of the applicable periods used under both statutes are identical. Employers may choose from the following four methods of calculation:

  • The calendar year;
  • Any fixed leave year (e.g., fiscal year, employee’s anniversary date, etc.);
  • The 24-month period measured forward from the first date the employee takes leave; or
  • A rolling 24-month look-back period measured from the date the employee takes leave.

  Employers must notify employees of the chosen method of calculation, apply the chosen method consistently, and provide 60 days’ notice if the method will change.

  No. 7: Does FMLA Leave Count Against NJFLA Entitlements? (FAQ 36-38)

  When an employee takes leave for a reason that is covered both by the NJFLA and FMLA, the leave simultaneously counts against both types of leave. However, employees who take FMLA leave for their own disability are entitled to an additional 12 weeks of NJFLA leave within a 24-month period. For example, an employee who first takes FMLA leave due to their own pregnancy- or childbirth-related disability would be entitled to an additional 12 weeks of NJFLA leave in a 24-month period to care for or bond with their newborn child.

  If an employee is on FMLA leave and a subsequent event occurs that renders the employee eligible for NJFLA leave, the event will not convert the FMLA leave to NJFLA leave. Additionally, the leave time will not be simultaneously counted against the employee’s NJFLA leave time. For example, if an employee is on FMLA leave for their own disability when a family member becomes seriously ill and requires the employee’s care, they may continue their leave solely under the FMLA for as long as they remain eligible, even though they also would be eligible for NJFLA leave.

  No. 8: Can Employers Require Employees to Use Accrued Paid Leave During NJFLA Leave? (FAQ 5)

  Employers generally may determine whether an employee is required to use accrued paid leave (including vacation, sick, administrative, or other paid time off) during NJFLA leave. This determination is based on whether the employer has an established policy or practice and how it administers such policy or practice:

  • If an employer has an established policy or practice that requires employees to exhaust all accrued paid leave during leaves of absence, they may require employees to do so during NJFLA leave.
  • If an employer has an established policy or practice that allows employees to take unpaid leave without first using accrued paid leave, they cannot require employees to use accrued paid leave during NJFLA leave.
  • If an employer does not have an established policy or practice, the employer cannot require the use of accrued paid leave during NJFLA leave if the employee decides not to do so – however, the employee may use accrued paid leave during NJFLA leave at their own discretion.
  • Employers with different policies or practices governing different types of leave must treat NJFLA leave in the same manner as the leave that most closely resembles NJFLA leave.

  No. 9: Can an Employer Deny an Eligible Employee’s Request for NJFLA Leave? (FAQ 19)

  Generally, an employer may not deny NJFLA leave to an eligible employee. However, the law provides an exception if the following three conditions are satisfied:

  • The employee is a salaried employee who is among (1) the highest-paid five percent of the employees of the employer, or (2) the seven highest-paid employees of the employer, whichever is greater;
  • The employer can demonstrate that allowing the leave would cause a substantial and grievous economic injury to the employer’s operations; and
  • The employer notifies the employee of its decision to deny the leave when the decision is made.

  Notably, this exception does not apply to circumstances where the employee requests leave pursuant to the NJFLA’s qualifying reasons during a state of emergency.

  No. 10: Are There Any Exceptions to the NJFLA’s Right to Reinstatement? (FAQ 25)

  Yes. Generally, an employee is entitled to return to the same position they held prior to taking NJFLA leave or, if the position is no longer available, a position of equivalent seniority, status, benefits, pay, and other terms and conditions of employment. However, where an employer experiences a reduction in force (“RIF”) or layoff while an employee is on NJFLA leave, and the employee would have lost their position due to the RIF or layoff had the employee not been on leave, the employer is not required to reinstate the employee to their former or an equivalent position.

  If you have any questions relating to the new NJFLA FAQs or how to ensure your company is in compliance with the NJFLA and other leave laws, please feel free to reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.