Proposed Family Leave Insurance Regulations Issued

On October 6, 2008, the New Jersey Department of Labor and Workforce Development (NJDOL) issued its long-awaited proposed regulations implementing New Jersey’s Paid Family Leave Law, formally known as the “Family Leave Insurance Law.”  (For a detailed fact sheet on the new law, click here).  The proposed regulations provide clarification and guidance in a number of areas under the new law, which are discussed further below.

Claim Filing Procedures

• The NJDOL will be issuing forms (Form FL-1 and FL-2), which employees may use to notify the State when taking family leave and seeking family leave insurance (FLI) benefits.  Employees should provide notice to the State within 30 days after the commencement of the period of family leave.  N.J.A.C. 12:21-3.2.
• Health care providers may not charge a fee for completing forms associated with the filing of FLI claims.  N.J.A.C. 12:21-1.5.
• A claimant must have a valid Social Security Number (SSN) in order to file a claim for FLI benefits, however, “upon a showing of good cause” and “on a claimant by claimant basis” the NJDOL may waive the requirement of a valid SSN. N.J.A.C. 12:21-3.2(f).
• Employers must respond within 10 days after receiving a request for information from the NJDOL pertaining to a claim for FLI benefits.  Failure to do so may result in penalties.  N.J.A.C. 12:21-3.9.
• Payments under the State plan (or an approved private plan) generally must be made directly to the employee.  However, FLI benefit payments may be made to the employer where the employer has advanced money to the employee in an amount equal to or greater than the FLI benefit, and where the employee has consented in writing to such a payment.  N.J.A.C. 12:21-1.6.  This arrangement may occur where the employer elects to pay the employee taking leave (either fully or in an amount equal to the FLI benefit) through its normal payroll process and then have the employee turn over his/her FLI check to the employer.

Private Plans

• Employers that want to provide FLI benefits through a private plan must submit their plan to the NJDOL for prior approval.  The proposed private plan approval process largely mirrors the existing regulations governing private plan approval for Temporary Disability Insurance (TDI) benefits.  N.J.A.C. 12:21-2.1 through 2.28. The NJDOL has also issued a Handbook on FLI private plans, which is available on the NJDOL website.
• The proposed regulations also address the handling of employee contributions to private plans, and the transfer of plans to a successor employer.  N.J.A.C. 12:21-2.33 & 2.34.

Reestablished Claims

• The proposed regulations address various issues pertaining to “reestablished claims,” defined to mean a second claim for FLI benefits filed within the same 12-month period.  N.J.A.C. 12:21-3.4.
• Issues addressed include waiting periods between claims and the calculation of maximum benefits.

Reduction of Benefits

• The proposed regulations clarify the manner in which employers may permit or require employees to use paid sick leave, vacation time or other paid leave in lieu of FLI benefits. When an employer requires such use of paid leave (it may require the use of up to two weeks of paid leave), it must request that the State or private plan reduce the FLI benefits otherwise payable under the plan. If the employer fails to do so, the employee will retain full benefits under the plan. N.J.A.C. 12:21-3.5(c)-(g).
• When an employer permits use of paid leave in excess of the two weeks it may require, there is no reduction in the FLI benefits payable under the plan. N.J.A.C. 12:21-3.5(h)-(i).
• The proposed regulations also address how a claimant’s benefits may be reduced under the State plan, including a reduction by the amount paid concurrently under any governmental or private retirement, pension, or permanent disability benefit to which the employer contributed on the claimant’s behalf, where the claimant has already received those payments before the benefits from the State plan have issued.  N.J.A.C. 12:21-3.5(a)-(b).

Intermittent Leave

• The proposed regulations clarify the circumstances under which an employee is eligible for FLI benefits when taking intermittent leave.  The regulations distinguish between leave for the purpose of “bonding” with a newborn or newly adopted child from leave to provide care to a child (or other family member) with a serious health condition.  When intermittent leave is taken for bonding, no FLI benefits are payable, unless both the employee and employer agree that the employee may take the leave on an intermittent basis.  N.J.A.C. 12:21-3.10.

Employer Notice Requirements

• Employers must post a notice of employees’ rights and also distribute the notice to employees at various times, including upon adoption of the regulations, at the time of hiring, and when FLI benefits are applied for.  N.J.A.C. 12:21-1.8(a)-(b).
• The notice that must be distributed (as opposed to posted) may be transmitted in electronic form.  N.J.A.C. 12:21-1.8(c).
• A sample notice will be made available by the NJDOL.  N.J.A.C. 12:21-1.8(d).

Effective Date

New Jersey’s Paid Family Leave Law takes effect on January 1, 2009.  Employee contributions must commence on that date, but employees may not receive FLI benefits until July 1, 2009.

The above proposed regulations are set for a public hearing on November 3, 2008, and written comments may be submitted to the NJDOL through December 5, 2008.

Additional Information

The NJDOL recently issued another set of proposed regulations under the Paid Family Leave Law, which address other issues of importance, including employee contribution information.  (For a summary of these proposed regulations, click here.)

Ogletree Deakins attorneys are available to discuss these important proposed regulations in greater detail in advance of the public hearing and at the conclusion of the comment period. 

Should you have any additional questions about the proposed regulations, 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 October 10, 2008 issue of the New Jersey eAuthority.