Earned sick leave can be used if employee cannot work because of declaration of state of emergency

As amended, the NJ Earned Sick Leave Law permits employees to use earned sick leave when the employee cannot work due to the closure of the employee’s workplace or the employee’s child’s school or place of care, due to a state of emergency declared by the Governor. This new provision encompasses the school closures and workplace closures ordered by NJ Governor Philip Murphy during the COVID-19 pandemic.

In fact, the law now permits paid sick leave usage any time the employee “is not able to work because of…the declaration of a state of emergency by the Governor.”

The law now also permits sick leave usage where a health care provider or the Commissioner of Health has made a determination that the presence in the community of the employee, or a member of the employee's family in need of care by the employee, would jeopardize the health of others. Further, earned sick leave can be used by employees subject to quarantine or isolation (or caring for a family member in quarantine or isolation) as a result of “the recommendation, direction, or order of a healthcare provider or the Commissioner of Health or other authorized public official” following suspected exposure to a communicable disease such as coronavirus.

Employees may take NJ Family Leave to care for family subject to COVID-19 isolation or quarantine

The new law also amends the NJ Family Leave Act, which entitles certain employees to take up to 12 weeks of job-protected family leave in a 24-month period. Job-protected family leave may be taken to care for a family member, or someone who is the “equivalent” of a family member, who has a “serious health condition,” which is now defined to include:

  • an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of the employee or family member of the employee due to:
  • (1) the issuance by a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of the employee or family member may jeopardize the health of others; and
  • (2) the recommendation, direction, or order of the provider or authority that the employee or family member be isolated or quarantined as a result of suspected exposure to a communicable disease.

This expansion applies only during a state of emergency declared by the Governor or when indicated to be needed by the Commissioner of Health or other public health authority.

The amendments also prevent an employer from relying on the “key employee” exclusion to deny leave to highly compensated salaried employees under certain circumstances, including but not limited to when the leave is requested to care for a family member subject to a recommendation or order of quarantine or isolation during an epidemic of communicable disease.

Expanded Disability and Paid Family Leave insurance benefits available

New Jersey also expanded its Temporary Disability Benefits Law to permit employees to receive compensation through Family Leave Insurance while providing care to a family member under the newly amended provisions of the NJ Family Leave Act.

Disability benefits will also be available to employees who are unable to work during a state of emergency declared by the Governor where the employee experiences an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent the spread of a communicable disease, which requires in-home care or treatment of the employee due to: (1) the issuance by a healthcare provider or the commissioner or other public health authority of a determination that the presence in the community of the employee may jeopardize the health of others; and (2) the recommendation, direction, or order of the provider or authority that the employee be isolated or quarantined as a result of suspected exposure to a communicable disease.

The seven-day waiting period for disability benefits is eliminated in connection with an employee’s own disability under these circumstances.

Guardian continues to stay on top of all new and evolving legislation and is working to gain clarity on the implementation. We will provide you with more details on what that means to you and the potential impact to you and your employees.

For additional updates, please visit our resource center, which includes frequently asked questions about Guardian’s response to the COVID-19 pandemic.

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