On Monday, April 7, 2008, the New Jersey Senate passed a controversial bill (A873) which gives all employees, without regard to employer size, the right to six weeks paid leave to care for a newborn, a newly adopted child or sick relative.  As a result, New Jersey is set to become only the third state in the country (joining California and Washington) to provide employees with paid family leave as Governor Jon Corzine has said that he will sign the bill into law.

Paid Leave Entitlement

Using the structure of the current State Temporary Disability Benefits Law, the bill provides employees six weeks of paid leave at two-thirds of their salaries, up to a maximum of $524.00 a week.  It will be financed by employee payroll deductions that will cost the average New Jersey worker an estimated $0.50 to $1.00 per week according to the bill’s sponsors, although opponents of the bill have estimated that the cost to employees may be much higher. 

The bill does not modify the State’s existing Family Leave Act, which requires employers with 50 or more employees to provide employees 12 weeks of unpaid family leave every 24 months.  Under the bill, employers with fewer than 50 employees are not required to hold an employee’s job open if an employee takes paid leave to care for a sick relative, a newborn or a newly adopted child.  At the urging of the bill’s opponents, language was added to the bill purportedly immunizing smaller employers from liability if they do not rehire employees who take paid family leave.  However, opponents of the bill remain concerned that small employers that fail to rehire employees who take paid leave may face lawsuits.

Other Key Provisions

Under the bill, an employer may require an employee to take up to two weeks (but not more) of available sick pay, vacation pay, or other fully-paid leave provided by the employer before receiving the paid family leave benefits.  An employer may also require that paid family leave benefits run concurrent with employer paid leave, that is, an employer may require that the period of paid family leave benefits be reduced by the amount of time in which employer paid leave is provided.  If an employee is required to use employer paid leave, the bill requires that the employee be permitted to use the first week’s worth of employer paid leave during the one-week waiting period that precedes the start of the paid family leave benefits.

If an employee is taking leave to care for a child after birth or adoption, the employee is required to give not less than 30 days’ advance notice before the leave commences.  Leave under those circumstances must be for a single continuous period of time.  However, the employer may allow the employee to take the leave during non-consecutive weeks in a mutually agreed manner.  Leave taken because of the birth or adoption of a child may be taken at any time within a year after the date of the birth or adoption.

If leave is taken for the care of a sick family member, the employee may take the leave on a continuous or intermittent basis.  In either case, a proper medical certification must be provided by a health care provider.  When leave is taken to care for a family member on a continuous basis, the employee must provide prior notice of the leave “in a reasonable and practicable” manner, unless unforeseen circumstances prevent such notice.  The employee must make a reasonable effort to schedule the leave so as to not unduly disrupt the employer’s operations.

The bill allows leave to care for a family member to be taken on an intermittent basis when medically necessary.  If intermittent leave is taken for that circumstance, the following conditions apply:  (1) the total time within which the leave is taken does not exceed 12 months; (2) the employee must give prior notice of not less than 15 days before the first day on which benefits are paid for the intermittent leave (absent emergency or unforeseen circumstances); (3) the employee must make a reasonable effort to schedule the leave so as to not unduly disrupt the business operations; and (4) if possible, prior to the commencement of intermittent leave, the employee must provide the employer with a regular schedule of the days or days of the week on which the intermittent leave will be taken.

Provided that the Governor signs the bill, the new law will take effect on January 1, 2009, and the payment of family leave benefits will commence on July 1, 2009.

Additional Information

Should you have any additional questions about this statute or its ramifications, please contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via email at clientservices@ogletreedeakins.com.

Note: This article was published in the April 8, 2008 issue of the New Jersey eAuthority.

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