New Jersey has created guidance to address frequently asked questions on the New Jersey Family Leave Act.
The details
The New Jersey Family Leave Act (NJFLA) requires employers with 30 or more employees worldwide to, under a qualifying circumstance, provide up to 12 weeks of unpaid job-protected leave during a 24-month period. Leave under the NJFLA must be provided to an eligible full or part-time employee who has been employed by the company for at least one year and has worked at least 1,000 hours in the past 12 months.
NJFLA Guidance
New Jersey has released guidance to clarify key facts and questions about the NJFLA. See the NJFLA law, NJFLA rules, and NJFLA Fact Sheet for further details.
Employee Eligibility Factors
The guidance clarifies that eligibility for NJFLA leave depends on factors such as how frequently an employee conducts work outside of New Jersey and whether an employee:
- Works in New Jersey;
- Has a base of operations in (or the place from which their work is directed and controlled is in) New Jersey;
- Has an understanding with their employer on the state their employment is based in; and
- Has tax and employment benefits that suggest they are a New Jersey employee. For instance, the NJFLA would not apply to an employee who pays into the New York unemployment system (they would generally be considered a New York employee).
Note: The guidance clarifies that a covered employer's headquarters does not have to be in New Jersey, and an employee does not have to reside in or complete all of their work in New Jersey.
How to Calculate 1,000 Hours Worked during the Preceding 12-month Period
An employer must consider the following base hours from the preceding 12-month period when calculating eligibility under the NJFLA:
- Hours for which an employee receives compensation (including overtime) and workers' compensation;
- Hours an employee served in the military which would have otherwise been spent at work; and
- Hours when an employee is laid off or furloughed (up to 90 calendar days) during reduced operations due to a state of emergency. See the guidance for further details.
Note: An employer may include the hours an employee receives certain compensation, such as vacation or personal, administrative, or sick leave.
How to Calculate the 24-Month Period
The methods used to calculate the NJFLA 24-Month period are the same as the four methods used to calculate the FMLA 12-Month period: 1) The calendar year; 2) A fixed leave year (such as a fiscal year or employee's anniversary date); 3) The 24-month period measured forward from the first date the employee takes leave; or 4) A rolling 24-month look-back period measured from the date the employee takes leave.
Note: An employer must notify its employees of the chosen method, apply it consistently, and provide employees 60 days' notice of a change to the method.
Covered Leave
Under the NJFLA, "care" includes 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.
An eligible employee is entitled to unpaid job-protected leave under the NJFLA to care for:
- A family member (or someone equivalent to family) with a serious health condition;
- A child (the leave must begin within one year of the child's birth or placement for adoption or foster care). The leave may also be used to bond.
Leave under the NJFLA also covers caregiving related to a State of Emergency, natural or man-made disaster, or emergency that the President of the United States, the Governor of New Jersey, or a municipal emergency management coordinator declares a state of emergency.
Caregiving leave may be used to:
- Care for a family member (or someone equivalent to family) who is isolated or quarantined due to suspected exposure to a communicable disease; or
- Provide required care or treatment for a child whose 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.
Note: An employee's own medical condition is not covered under the NJFLA but may be covered under other leave laws. For example, an employee who seeks leave to care for their pregnancy-related disability or recovery from childbirth may be eligible for leave under the federal Family and Medical Leave Act (FMLA).
Exceptions to the NJFLA's Right to Reinstatement
An employee is generally entitled to return to the same or equivalent position of seniority, status, benefits, pay, and other terms and conditions of employment (if the position is no longer available) that they had held before their NJFLA leave.
Note: An employee that experiences a reduction in force or layoff event while on NJFLA leave is not entitled to reinstatement (provided that the employee would have lost their position if they had not been on leave).
FMLA Leave Interplay with NJFLA Entitlements
A leave covered by the NJFLA and FMLA will simultaneously count against both types of leave. However, an employee who first takes FMLA leave for their own disability is entitled to an additional 12 weeks of NJFLA leave within a 24-month period. For example, an employee who uses FMLA leave due to their own pregnancy or childbirth-related disability would also be entitled to 12 additional weeks of NJFLA leave in a 24-month period to care for or bond with their newborn child.
Accrued Paid Leave Interplay with NJFLA Leave
An employer generally may determine whether an employee must use accrued paid leave, such as vacation, sick, administrative, or other paid time off, during NJFLA leave. The determination is based on the existence and administration of an established policy or practice. Under the guidance, an employer:
- May require employees to exhaust all accrued paid leave during NJFLA leave if the employer has an established policy or practice that requires employees to exhaust all accrued paid leave during leaves of absence.
- Cannot require employees to use accrued paid leave during NJFLA leave if:
An employer with different policies or practices that govern different types of leave must treat NJFLA leave as they do leave that most closely resembles NJFLA leave.
Denying Employee Requests for NJFLA Leave
An employer may generally not deny NJFLA leave to an eligible employee unless:
- The employee is salaried and is one of the highest-paid five percent of employees or seven highest-paid employees (whichever is greater);
- The employer can demonstrate that the leave would cause a substantial and grievous economic hardship to its operations; and
- The employer notifies the employee when it decides to deny the leave.
Note: Employers may not deny leave to such employees during a state of emergency.
Next steps
Review the guidance, NJFLA law, NJFLA rules, and NJFLA Fact Sheet .