New Jersey's Paid Family Leave Act

Frequently Asked Questions about the New Paid Family Leave Law

There's a fair amount of confusion on what the new law does and doesn't do. Here are some answers.

On May 2, 2008, Governor Corzine signed into law "an act providing benefits for family temporary disability leave," which has been dubbed the New Jersey "Paid Family Leave" law.

The "Paid Family Leave" title is somewhat misleading, as the new law does not amend the existing New Jersey Family Leave Act, nor create a new right to paid, job protected leave. Rather, the new law provides for partial wage replacement using the current structure of the State Temporary Disability Benefits program when employees are absent from work for certain family care situations. The program is funded entirely through employee contributions to the state, and benefits are paid directly by the state to employees, unless the employer elects to utilize a private plan. Here are some common questions and answers about the new law.

Which employers are covered?

All employers subject to the New Jersey Unemployment Compensation Law; thus, there is no 50 employee threshold as under Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA).

Which employees are eligible?

  • All individuals who have:

Worked 20 calendar weeks in covered New Jersey employment; or

Earned at least 1000 times NJ minimum wage (currently $7.15/hr) during 52 weeks preceding leave.

This may draw in workers considered to be independent contractors given the liberal test used determine "covered employment" under the Unemployment Compensation Law. Also, the minimum "hours of service" and 12 months of employment rules of the FMLA and NJFLA are inapplicable.

When can employees receive paid leave benefits?

When they are absent to care:

  • For a newborn, within 12 months of birth;
  • For a newly adopted child, within 12 months of placement;
  • For a family member with serious health condition.

Definitions:

  • "Family member" means spouse, civil union partner, domestic partner, parent or child;
  • "Parent" means biological, foster, adoptive, step, legal guardian;
  • "Child" means biological, adopted, foster, step, legal ward, child of a domestic partner or civil union partner who is under 19 or over 19 but incapable of self care because of mental or physical impairment;
  • "Care" means but is not limited to physical care, emotional support, visitation, assistance in treatment, transportation, arranging for a change in care, assistance with essential daily living matters and personal attendant services;
  • "Serious health condition" means illness, injury, impairment or physical or mental condition which requires: (i) inpatient care in a hospital, hospice, or residential medical care facility or (ii) continuing medical treatment or continuing supervision by a health care provider.

How much is the paid leave benefit?

2/3 of employee's average weekly wage, up to $524/week maximum.

Who pays for paid leave benefits?

When an employer uses the state plan:

  • 100% funded by employee payroll tax; no employer contribution;
  • Estimated to be 64 cents per week ($33/year) per employee;
  • Administered through existing State Temporary Disability Benefit Program

When Employer Uses Private Plan:

  • Unclear: Under a private Temporary Disability Insurance plan, an employer can only require employees to contribute toward the cost of the plan following a written election with a majority of employees agreeing to the plan prior to the effective date of the plan.
  • Not clear if this same requirement will apply to private Paid Family Leave plan.
  • If employer does use approved private plan, employer does not transmit employee contributions to the state.

How much paid leave do employees get?

  • Six weeks with respect to "any one period" of family leave;
  • 42 days with respect to "any one period" of family leave taken on intermittent basis to care for sick family member;
  • Six weeks of family leave during any 12 month period;
  • 42 days of family leave during any 12 month period taken on intermittent basis to care for sick family member.

Are employers required to hold employees' jobs open when then take leave?

Yes ... and no.

  • Employers are not required, under the Paid Family Leave Law itself, to restore employees to their employment upon expiration of the leave.
  • Small employers (those with fewer than 50 employees, and thus not covered by FMLA or NJFLA) may permanently replace employees who take leave under the Paid Leave Law, according to the law.
  • However, employers with 50 or more employees must restore employees to their employment pursuant to the FMLA and/or NJFLA if the employees are eligible for leave under one or both of those laws.

Caution: This so called "small employer exception" has not yet been tested in the courts and small employers can surely expect employees who are terminated after taking Paid Family Leave to litigate their discharges.

Is intermittent Paid Family Leave allowed to care for a sick relative?

Yes, but with these conditions:

  • Total time within which leave is taken cannot exceed 12 months;
  • Must be supported by Medical Certification as to medical necessity;
  • Must provide at least 15 days prior notice, absent emergency or unforeseen circumstances;
  • Must make reasonable effort to schedule leave to avoid undue disruption;
  • Must provide in advance a regular schedule of the days or days of the week when leave will be taken, if possible;
  • Employer consent not required

Is intermittent Paid Family Leave allowed to care for a newborn or adopted child?

Yes, but only with the approval of the employer, and the arrangement must be disclosed to state.

How much notice must employees provide?

To care for a sick relative:

  • Consecutive leave - must provide prior notice "in a reasonable and practical manner" absent emergency or unforeseen circumstances;
  • Intermittent leave - 15 days prior notice, absent emergency or unforeseen circumstances.

To care for a newborn or adopted child:

  • 30 days prior notice;
  • Failure to provide required notice will result in loss of 2 weeks worth of benefits, unless due to unforeseeable circumstances.

Is a medical certification required?

  • Yes, when leave is to provide care to sick family member;
  • Certification must state date of onset of condition if known, probable duration of condition, medical facts within knowledge of provider regarding the condition, a statement that condition warrants participation of employee and estimate of amount of time care will be needed;
  • If intermittent leave is taken, must also state that intermittent leave is medially necessary, expected duration of intermittent leave and if leave is for planned medical treatment the dates of the treatment.

Is a neutral medical examination required?

  • The state may request that family member be examined by a state designated provider at state expense;
  • May not be more frequent than once per week;
  • Refusal of family member to cooperate will disqualify employee from benefits, but not retroactively.

Is there a waiting period for paid leave benefits?

  • Yes, there is a 1 week waiting period;
  • If benefits continue for 3 weeks, benefits are payable retroactive to the first day;
  • If employee has personal disability and then immediately takes Paid Family Leave, no waiting period between the two.

Can employer require substitution of paid time off?

  • Employer may require employees to first use up to two weeks sick, vacation or other fully paid time off accrued under company policy before using Paid Family Leave;
  • If so, employee is permitted to take company paid leave during one week waiting period;
  • Employer may permit employees to use all available sick, vacation or other fully paid time off accrued under company policy before using Paid Family Leave;
  • Employer may have total number of days of Paid Family Leave benefits reduced by the number of days of company paid time off.

Presumably employer notification form to state will allow employer to give this direction.

How does Paid Family Leave interplay with FMLA and NJFLA?

  • Paid Family Leave runs concurrent with FMLA and/or NJFLA leave;
  • Paid Family Leave does not reduce or impact leave rights under FMLA or NJFLA.

Can Paid Family Leave benefits be provided through a private plan?

  • Yes, just like TDI benefits;
  • Employers can "mix and match" with TDI plan - both state, both private, or one of each;
  • Private plan must be approved by the state;
  • The plan may be insured by the employer, by an insurance company or a union welfare fund;
  • Private plans must be at least as liberal in benefit amounts, eligibility requirements and duration of payments as the state plan;
  • Employers intending to cover Paid Family Leave through a private plan must submit their plans to the state at least 90 days prior to the date the private plan is to be effective, so employers should submit them no later than September 30, 2008.

How exactly does an employee obtain Paid Family Leave benefits?

To-be-issued regulations should clarify the process, but this much is known from the law itself:

When an employer uses the state plan:

  • Not later than 9th day after leave begins employer must submit to state on state-provided forms information sufficient for state to make eligibility determination, including wage information and information about company paid leave benefits;
  • Not later than 30 days after leave begins employee must submit a notice and claim to state;
  • Upon receipt of employer and employee submissions, state will make determination;
  • For leave taken for sick family member, benefits may be paid for three weeks pending receipt of medical certification;
  • Claim will not be denied based on failure to follow procedures if state determines that notice and certification is supplied as soon as reasonably possible.

When an employer uses a private plan:

Employees receive benefits pursuant to claim procedures adopted by private plan, which can be no more burdensome on the employee than the state procedures

Can the employer deny a paid family leave benefit request?

Not exactly:

  • The state (or private plan) determines whether to grant Paid Family Leave benefits;
  • The employer may challenge the state's determination of eligibility by same appeal procedures applicable to TDI appeals.

What are an employer's notice obligations?

  • Must conspicuously post notice of Paid Family Leave Rights, using form to be issued by DOL;
  • Must provide written copy of notice to each employee within 30 days after DOL issues;
  • Must provide written copy of notice to each employee at time of hiring;
  • Must provide written notice whenever employee notifies employer of need for leave;
  • Must provide written notice upon first request of employee.

What is the law's effective date?

  • Payroll deductions must commence January 1, 2009;
  • Benefit available commencing July 1, 2009.

What are the penalties for filing a false claim?

  • $250 fine for each false statement made to get benefits;
  • $1000 fine for violations with intent to defraud state.