With the advent of the newest employee benefit in New Jersey, business owners ask what impact Family Leave Insurance will have on the employer’s discretion to terminate employment due to business conditions or other considerations. The Legislature has made it clear that the amendments to the Temporary Disability Benefits law, commonly known as the “Paid Family Leave Act”, confer a monetary benefit, but not a leave entitlement. In other words, this law does not further erode the “At-Will” concept of employment, that the employer is free to change the working conditions or terminate the employment of a worker with or without notice and with or without good cause for the termination.
Of course, appropriate law limits this discretion where there is a written contract specifying a certain duration of employment or if the employer’s action violates applicable laws (These laws include Family Leave Acts, Discrimination Laws, implied promises contained in written or oral policies, and New Jersey’s Conscientious Employees Protection Act.) In the context of Family Leave laws, those employers who are covered under the Federal or New Jersey State Acts (Under Federal law, covered employers are those who employ 50 or more employees for each working day during 20 or more calendar weeks in the current or preceding calendar year, either at the main work site or without 75 miles of that work site. The New Jersey law applies to employers with 50 or more employees.) must still comply with the laws and regulations promulgated under these Acts. However, these amendments do not confer additional leave rights to employees. As such, while any employee who is covered by the New Jersey Disability Benefits law may avail himself/herself of Family Leave Insurance benefits, if they quality under the new law, those who are not otherwise protected by the Leave or other laws, do not gain any additional job protection. For example, if a company employing twenty individuals needs to eliminate the position of an employee on paid leave, due to current economic conditions, the employer may do so lawfully.
Must the employer pay the employee’s wages for this paid leave period? Family Leave Insurance benefits are fully funded by employee contributions through payroll deductions, which began on January 1, 2009 (The taxable wage base is the same as Temporary Disability Insurance and Unemployment Insurance. The amounts will vary on an annual basis. The percentage of withholding in 2009 will be 0.0009 of the taxable wage base. This will increase to 0.0012 for each subsequent year.) The employer will not be required to contribute to this plan. In addition, an employer can require an employee to use up to two weeks of any paid sick leave, vacation time or other leave as full pay, if made available by the employer, prior to utilizing Family Leave Insurance benefits.
For what reasons may an employee claim these benefits? Benefits shall be granted for an employee to bond with a child during the first twelve months after the child’s birth, if the covered individual or the domestic partner or civil union partner of the covered individual, is a biological parent of the child, or for the first twelve months after the placement of the child for adoption with the covered individual. In addition, benefits can be claimed to care for a family member with a serious health condition. “Family member” is defined as a child, spouse, domestic partner, civil union partner, or parent of a covered individual. “Child” means a biological, adopted, or foster child, step-child or legal ward of a covered individual, child of a domestic partner of the covered individual, or child of a civil union partner of the covered individual, who is less than nineteen years of age or is nineteen years of age or older but incapable of self-care because of mental or physical impairment.
Benefits are NOT available due to the serious health condition of the covered employee (In this respect, the categories are borrowed from New Jersey’s Family Leave Act, which, unlike the Federal Act, excludes leave for the employee’s own serious health condition). “Serious Health Condition” means an “illness, injury, impairment or physical or mental condition”, which includes any of the following:
1. In-patient care or continuing treatment by a health-care provider, including any period of incapacity or subsequent treatment in connection with in-patient care. (a) “Period of incapacity” means inability to work, attend school or perform other regular daily activities due the serious health condition, treatment therefore, or recovery there from. OR
2. Continuing treatment by a health-care provider, which involves one or more of the following: (a) A period of incapacity (inability to attend work, school, etc.) for more than three consecutive calendar days, that also involves.
(i) Treatment two or more times by a health-care provider.
(ii) Treatment by a health-care provider on at least one occasion, which results in a regime of continued treatment. Treatment includes prescription drugs, such as antibiotics. Regimes, such as resting, drinking fluids, taking aspirin, which can be initiated without visiting a health-care provider, are not sufficient.
3. Any incapacity due to pregnancy or pre-natal care.
4. Conditions not currently incapacitating but which require multiple treatments.
5. Any period of incapacity or treatment for such incapacity due to chronic serious health condition.
6. A period of incapacity, which is permanent or long-term due to a condition for which treatment may not be effective.
The above-listed inclusions are broadly stated and there are refinements and exclusions, which should be evaluated in any given situation.
Who is eligible for Family Leave Insurance benefits? An employee can collect benefits if he or she is currently employed in “covered employment” or out of “covered employment” for less than two weeks. Employment, including employment with governmental entities, covered under the New Jersey Unemployment Compensation Law is covered with respect to Family Leave Insurance. A claimant must have had such employment in at least twenty calendar weeks (base weeks) in New Jersey covered employment with earnings of One Hundred and Forty-Three ($143.00) Dollars or more per week, or have earned Seventy-Two Hundred ($7200.00) or more in such employment during the fifty-two weeks (base year) immediately prior to the week in which the Family Leave claim begins.
Notwithstanding the above, an employee is not qualified for any period that:
1. The employee receives temporary disability benefits from any source;
2. The employee receives unemployment insurance benefits;
3. The employee receives full salary or paid time off;
4. The employee is working;
5. The employee is under family leave, which did not start while the claimant was a covered individual or within fourteen days of the claimant’s last date of work;
6. The employee was on family leave for the care of a family member and the care recipient was not under the care or supervision of the health-care provider;
7. The employee is out of work due to a stoppage of work, which exists because of labor dispute at the claimant’s place of employment; or
8. The employee has been discharged by the most recent employer for gross misconduct under applicable unemployment compensation law.
How much is the benefit and for how long does it last? Benefits can be claimed commencing July 1, 2009. The Department of Labor and Workforce Development, Division of Temporary Disability Insurance, will publish a prescribed form after June 1, 2009. An employee can receive a maximum of six weeks of Family Leave Insurance benefits in a twelve-month period, which is denoted as the three hundred sixty-five consecutive days that begins with the first day that the employee establishes a valid first claim for Family Leave Insurance benefits. An employee may re-establish a claim within the same period for a different care recipient, or a claim during or following employment with a different employer. However, the employee cannot receive more than six weeks of benefits during the twelve-month period.
In the event of care for a family member with a serious health condition, claims may alternatively be filed for intermittent weeks or for forty-two intermittent days during the twelve-month period. The amendments impose a waiting week for the benefits to commence. No benefits will be paid for the first week, or any portion of that week, until the employee receives benefits for three weeks immediately following the waiting week. However, if the employee has been on temporary disability due to his or her own illness, there is no waiting period for the Family Leave Insurance claim to commence.
The weekly benefit rate is based on the employee’s average weekly wage in the eight calendar weeks immediately before the week in which the benefit commences. The rate is two-thirds of this wage, up to a maximum of Five Hundred Forty-Six ($546.00) Dollars. The daily benefit rate is computed at one-seventh of the weekly benefit rate. The maximum amount in any one-year is six weeks, or one-third of the base year earnings, whichever is less.
What steps must an employee take to apply for these benefits? If an employee intends to take the benefits to participate in providing care for a family member with a serious health condition, he or she must give the employer reasonable and practicable notice, unless the time of the leave is unexpected or the time of the leave changes for unforeseeable reasons. The request must be supported by a medical certification. In addition, a reasonable effort must be made to schedule the leave so as not to unduly disrupt the operations of the employer. If a request is being made for intermittent leave in the circumstances, the minimum of fifteen days notice must be given, except if there is an emergency or other unforeseen circumstances. If possible, the employee will be required to provide a schedule of the required leave days. In the case of an employee who intends to claim insurance benefits to bond with a newborn or newly adopted child, thirty days prior notice must be given, except if the leave is unforeseeable. Failure to do so will result in a loss of two days leave. No intermittent leave is available for this category of benefit, unless agreed to by the employer. In that case, intermittent leave must be taken in periods of seven days or more.
A party who believes they have been aggrieved by application of the process will have formal appeal rights within the Division of Temporary Disability Insurance. Appeal rights and provisions will be explained on all decisions issued by the Division.
This analysis is intended to highlight the most salient provisions of the Family Leave Insurance benefits law, and has been derived from the Family Leave Insurance Fact Sheet published by the Department of Labor as well as other sources. Details and interpretations of the law will be published in the New Jersey Administrative Code. If there are any questions relative to the application of this new benefits law, an employer should consult counsel so as to ensure proper compliance. No doubt, unique situations will be presented and the full extent of the law will unfold as litigation ensues.