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OP-ED: Changes ahead

What employers need to know about expanded paid family leave benefits

On Feb. 19, Gov. Phil Murphy signed a law expanding benefits and protections currently available through the New Jersey Paid Family Leave Program (PFLP), a state program funded through employee contributions. Some changes are in effect now, while others will go into effect June 30, 2019, and July 1, 2020.

DEPOSIT PHOTOS

The PFLP provides income benefits to covered employees who take permitted time off to care for a family member. For example, if an employee’s spouse has a serious health condition, like cancer, the employee will be able to collect a portion of his or her wages while on leave allowed by the Family and Medical Leave Act and the New Jersey Family Leave Act, leave that normally would be unpaid unless the employer has a policy that provides otherwise.

Currently, the PFLP applies to employers of 50 or more employees. The PFLP provides employees with up to six weeks of paid family leave benefits and 42 days of intermittent leave benefits in a 12-month period, subject to certain conditions. Employees who take family leave are eligible to receive two-thirds of their pay, subject to a maximum weekly benefit of $650 for six weeks.

The latest changes to New Jersey’s PFLP expand both the coverage and the benefits provided under the law. The right to take leave for which PFLP benefits may be sought arises under the federal Family and Medical Leave Act, the New Jersey Family Leave Act and the New Jersey Security and Financial Empowerment Act (NJ SAFE Act).

Differing definitions

Employers should remember that the definition of a covered employer is different under each of these leave laws. The Family and Medical Leave Act covers employers with 50 or more employees within a 75-mile radius of the employee’s worksite for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. The state Family Leave Act covers employers with 50 or more employees working for at least 20 weeks during the current or previous year without regard to geographic location, and will soon apply to employers with 30 or more employees. The NJ SAFE Act covers employers with 25 or more employees working for at least 20 weeks during the current or previous year. The PFLP allows for income benefits during any of those statutory leaves.  The changes to the PFLP and the effective dates are summarized below.

As of Feb. 19, more people are eligible for benefits during family leave in two ways. First, the definitions of child, parent and family member were expanded to include foster children, parents-in-laws, grandparents, domestic partners, siblings, grandchildren, blood relatives and any other individuals who have the equivalent of a family relationship with the employee. Second, the law now provides benefits during leave to care for a family member who was a victim of domestic violence or a sexually violent offense — leave already permitted by the NJ SAFE Act.

Effective June 30, more employers will be subject to the PFLP because the Family Leave Act will apply to employers with 30 or more employees. (Defined as 30 or more employees for each working day during each of 20 or more calendar workweeks in the current or previous calendar year.) In addition, covered employers will be prohibited from harassing, threatening or otherwise discriminating or retaliating against an employee because the employee exercised paid family leave rights by requesting or receiving paid family leave benefits.

As of July 1, 2020, greater benefits will be available. Employees will be eligible for benefits for up to 12 consecutive weeks of paid family leave and 56 days of intermittent leave during any 12-month period, subject to certain conditions.

Furthermore, the weekly benefit will increase to 85 percent of the employee’s weekly wage, with the maximum weekly benefit going up to 70 percent of the statewide average weekly wage. Using data from 2019, the maximum possible weekly benefit will go from $650 a week to $860 a week.

What it means

Though the PFLP has been in effect since 2009, these changes will expand coverage to more employers and their workers. Smaller employers (those with less than 30 employees) will remain unaffected, while employers with 30 or more employees will need to comply with the law as of June 30.

Covered employers will likely see an increase in the length of time taken for family leave. Rather than returning from family leave early due to financial pressures, more employees will be able to take the full leave allotted by applicable leave laws once they are eligible for 12 weeks of benefits instead of six. That said, the PFLP does not give employees the right to take additional time off; it allows for income benefits during family leave, as permitted by the state and federal laws noted above, and NJ SAFE Act leave.

Navigating leave rights and obligations can be tricky, so employers should confer with legal counsel and their human resource professionals for guidance. Employers must remain mindful of the interplay between the protections provided by the PFLP and those afforded by other laws, such as the federal Family and Medical Leave Act, the New Jersey Family Leave Act and the NJ SAFE Act.

Employers should review their existing policies to ensure compliance with all applicable leave laws now and in the future, as the various provisions of this new law take effect. Covered employers are reminded to notify employees of their right to apply for benefits through the state PFLP during periods of authorized leave. Additionally, covered employers should educate and train supervisors and human resource professionals on the requirements of the amended law.

Kathleen O’Malley regularly counsels clients on day-to-day issues and works with employers on the development of employment policies and procedures, contracts, training and other best practices designed to reduce the risk of employment-related claims. She has extensive experience defending employment litigation when such claims arise. Alyssa W. Kovach represents clients in a broad array of industries with a variety of employment law matters. Elizabeth Mincer practices in the area of employment law.