NEW JERSEY PASSES LAWS TO AMEND ITS “MINI-WARN ACT” AND INCREASE STATE PROTECTIONS FOR EMPLOYEES

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Yesterday, important new legislation was passed in New Jersey. A complete list of changes is included in this press release: HERE . Of particular importance to New Jersey employers are changes to the New Jersey mini-WARN Act and changes to family leave programs.

NEW JERSEY MINI-WARN ACT

  • Previously, under NJ’s so-called “Mini-WARN Act,” (known formally as the “Millville Dallas Airmotive Plant Job Loss Notification Act”) (“the Act”), which imposes obligations on certain companies during mass layoffs or terminations/transfers of operations, there were exceptions that provided relief for employers from compliance with its notice requirements. Specifically, in the event of a “termination of operations,” employers were relieved from compliance in certain situations, including a “national emergency” (such as exists now as a result of the COVID-19 pandemic). However, these exceptions did not apply in the event of “mass layoffs.”
  • The Act has now been amended such that a company enacting “mass layoffs” meeting the criteria in the statute may invoke the exceptions, including the “national emergency” exception. This change takes effect immediately and is retroactive to March 9, 2020, meaning that “mass layoffs” that were prompted by the COVID-19 crisis from March 9, 2020 onward are now exempt from the requirements of the Act.
  • The newly passed law includes another important change that is significant for all mass layoffs/termination of operations, not just those prompted by COVID-19. The Act had previously been amended to provide onerous new requirements starting July 19, 2020 (including a 90-day notice period rather than a 60-day period, and payment of severance in some circumstances). The start date for the amended Act has now been changed to 90 days AFTER “termination of Executive Order 103 of 2020,” which declared a state of emergency in New Jersey as a result of the COVID-19 pandemic. As a practical matter, this means the start of the amended Act will in all likelihood be later than July 19, 2020, but we will not know the exact date until Governor Murphy lifts Executive Order 103.

Increased Protections for Employees
New Jersey also is continuing to expand its family leave and disability protections for employees during this COVID-19 crisis.

  • Previously, through Senate Bill 2304, New Jersey expanded its Temporary Disability Insurance (“TDI”) and Family Leave Insurance (“FLI”) programs when it modified the law’s definition of a “serious health condition.” This change allowed individuals access to TDI and FLI benefits during a public health emergency if they must take time off from work because they are diagnosed with or suspected of exposure to a communicable disease or to take care of a family member diagnosed with or suspected of exposure to a communicable disease. The bill also expanded New Jersey’s Earned Sick Leave Law to permit the use of earned sick time for isolation or quarantine recommended or ordered by a provider or public health official as a result of suspected exposure to a communicable disease, or to care for a family member under recommended or ordered isolation or quarantine.
  • Now, through Senate Bill 2374, New Jersey’s family leave job protection act, known as the “New Jersey Family Leave Act,” has been expanded in its coverage. Previously, eligible employee’s time off was limited to care for a newborn or adopted/foster placed child or the serious health condition of a family member. Such leave can now be taken when, in the event of a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease, which:
    • requires in-home care or treatment of a child due to the closure of the school or place of care of the child of the employee, by order of a public official due to the epidemic or other public health emergency;
    • prompts the issuance by a public health authority of a determination, including by mandatory quarantine, requiring or imposing responsive or prophylactic measures as a result of illness caused by an epidemic of a communicable disease or known or suspected exposure to the communicable disease because the presence in the community of a family member in need of care by the employee, would jeopardize the health of others; or
    • results in the recommendation of a health care provider or public health authority that a family member in need of care by the employee voluntarily undergo self-quarantine as a result of suspected exposure to a communicable disease because the presence in the community of that family member in need of care by the employee would jeopardize the health of others.
  • The law describes the certification requirements for the newly expanded NJFLA coverage. It also permits covered individuals to take intermittent leave for the newly expanded reasons if:
    • the employee provides the employer with prior notice of the leave as soon as practicable; and
    • the covered individual makes a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer; and
    • if possible, the employee provides to the employer, prior to the commencement of the intermittent leave, a regular schedule of the day or days of the week on which the intermittent leave will be taken.
  • For purposes of TDI, the definition of “disability” has been expanded to include, in the event of a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority:
      • an illness caused by an epidemic of a communicable disease,
      • a known or suspected exposure to the communicable disease, or
      • efforts to prevent spread of the communicable disease, which requires in-home care or treatment of the employee due to:
        • 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
        • 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.
  • Finally, the FLI program has been expanded to permit eligible employees to take leave from work in the event of a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of the communicable disease, provide in-home care or treatment of the family member of the employee required due to:
    • 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 family member may jeopardize the health of others; and
    • the recommendation, direction, or order of the provider or authority that the family member be isolated or quarantined as a result of suspected exposure to a communicable disease.

NFC will continue to monitor the ever-changing landscape of these important laws that impact the workplace and continue to report on them.

If you have any questions relating to this eAlert, please reach out to the NFC Attorney with whom you typically work, or call us directly. We are happy to assist with this or any COVID-related issue.

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