New Jersey Employers May Need to Update Their Employee Handbooks to Comply with the Temporary Disability Benefits Law and Earned Sick Leave Regulations

As readers of this blog are aware, in recent years New Jersey has been active in enacting laws and regulations benefiting employees. Recently, New Jersey amended the New Jersey Temporary Disability Benefits Law (TDB) to provide for job-protected leave for organ and bone marrow donors. Also, the New Jersey Department of Labor (NJDOL) issued its final regulations for New Jersey’s Earned Sick Leave Law (ESLL). The TDB amendment and ESLL’s final regulations may require employers to update their employee handbooks.

Organ and Bone Marrow Leave

Effective May 20, 2020, the New Jersey Temporary Disability Benefits Law (TDB) will provide job-protected leave for a “period of disability” resulting from the donation of an organ or bone marrow. It should be noted that except for bone marrow and organ donation, the TDB does not provide job protection.

To be eligible for temporary disability benefits under the TDB, employees must work at least 20 weeks earning at least $200 weekly or have earned a total of $10,000 in the base year. A base year is defined as the first four of the last five completed calendar quarters before the filing a claim. Temporary disability benefits are commonly received by employees who are unable to work due a pregnancy or other disability. As of May 20, 2020, employees who donate organs or bone marrow will also be eligible to receive temporary disability benefits but, unlike other TDB benefit recipients, will receive job protections under the TDB. Although the TDB job protections do not apply to other disabilities, employees out on disability leave for other reasons would likely have job protection under other New Jersey employment laws, such as the Law Against Discrimination.

Final ESSL Regulations

We previously posted about the NJDOL’s proposed ESSL regulations. The final regulations contained minimal changes and, thus, did not require additional public notice or comment. Although the changes were minimal, there are a few changes that employers should take note of.

Calculation of Benefit Year

The proposed regulations required employers to have a single benefit year for all employees, such as a calendar year. The final regulations permit employers to calculate the benefit year using an employee’s anniversary date, and thus, have different benefit years for each employee.

Use of ESSL During FMLA and NJFLA Leave

According to the final regulations, employees cannot be required to use earned sick leave while out on leave under the Family Medical Leave Act (FMLA) or the New Jersey Family Leave Act (NJFLA). This rule is significant because many employers require employees who are out on FMLA or NJFLA leave to use accrued vacation and sick leave during an employee’s leave of absence. Under the ESSL, employees may be given the option, but cannot be required to use their earned paid sick leave while out on FMLA or NJFLA leave.

Employers should immediately review their leave and benefits policies to ensure compliance with the ESSL’s final regulations and the new protections afforded employees under the TDB. In particular, employers who are subject to the FMLA or NJFLA, need to ensure that their policies are updated, if necessary, to remove any requirement that employees utilize earned paid sick leave while out on FMLA or NJFLA leave.

If you have any questions about your business’s leave or other employment policies, please contact us at (201) 345-5412 or through our online scheduling calendar to set up a complimentary consultation.