NJ Earned Sick Leave Law Puts All Employers on the Hook for COVID Related Leave

As we all know, the Families First Coronavirus Response Act (“FFCRA”) Leave is set to expire on December 31, 2020. As explained in previous blogs, the FFCRA applies to employees with less than 500 employees. Employers must be aware that some state and local laws account for COVID related leve. Some local laws may implicate companies who may otherwise be exempt from providing COVID related leave. This blog focuses on the COVID related amendments to the New Jersey Earned Sick Leave Law (“ESLL”).

As explained below, in January the Regulations/Rules were revised to include virus related leave. Then, in March of 2020, the actual statute was amended to incorporate the current pandemic (and any future pandemics). We will look at these revisions chronologically, and then discuss what this means for employers. Before getting into the revisions to the regulations and then the statute, it is worth mentioning that the NJ ESLL applies to every single employee working in New Jersey, and thereby any employer with an employee working in the Garden State.

NOTE: This blog focuses on the virus-related revisions to the regulations and the statute. For more information on the New Jersey ESLL, please refer to my previous blog on the topic, and consult with counsel.

January 6, 2020 Revisions to the ESLL Regulations

On January 6, 2020, New Jersey amended the ESLL rules to incorporate virus related leave. This means that while some employers are exempt from the FFCRA Leave, they are not exempt from the NJ ESLL. In January, the state expanded the reasons employees could take the leave to include those related to epidemics or other public health emergency.

An employer shall permit an employee to use earned sick leave for any of the following reasons…

Time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of 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.

NOTE: For a look at the other reasons for which an employee qualifies for this leave, refer to my previous post.

This language mirrors the intent of the FFCRA, although not verbatim. It is interesting to note that the World Health Organization characterized the Coronavirus as a Pandemic on March 11, 2020, after the rule revisions were implemented. The regulation refers to “epidemics or other public health emergency.” The phrase, “other health emergency” is inclusive of COVID-19 since it is a “pandemic” not an “epidemic.” As seen below, the statute revisions address this distinguishing element.

March 24, 2020 Statute Amendment

On March 24, 2020, after the WHO declared COVID-19 a pandemic, the New Jersey legislature revised the actual ESLL Statute. In addition to the listed reasons for ESLL leave, employees were allowed to permit employees to use earned sick leave for:

(a) a closure of the employee’s workplace, or the school or place of care of a child of the employee by order of a public official or because of a state or emergency declared by the Governor, due to an epidemic or other public health emergency;

(b) Declaration of a state of emergency by the Governor, or the issuance by a health care provider or the Commissioner of Health or other Public Health Authority of 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;

(c) during a state of emergency declared by the Governor, or upon the recommendation, direction, or order of a healthcare provider or the Commissioner of health or other authorized public official, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by the provider or authority that the presence in the community of the employee or family member would jeopardize the health of others.

Let’s break down each of the above amendments:

(a) a closure of the employee’s workplace, or the school or place of care of a child of the employee by order of a public official or because of a state or emergency declared by the Governor, due to an epidemic or other public health emergency;

(b) Declaration of a state of emergency by the Governor, or the issuance by a health care provider or the Commissioner of Health or other Public Health Authority of 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;

  • The mention of “other Public Health Authority” that determines “the presence in the community…would jeopardize the health of others…” implies that employers should abide by the state of New Jersey guidance and also the Center for Disease Control.

  • The CDC has promulgated a plethora of guidance of which employers should be aware.

(c) during a state of emergency declared by the Governor, or upon the recommendation, direction, or order of a healthcare provider or the Commissioner of health or other authorized public official, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by the provider or authority that the presence in the community of the employee or family member would jeopardize the health of others.

  • Again, this references the CDC Guidance and Guidance from the state.

What Does This Mean For Employers?

What does this mean for employers with under 500 employees?

The FFCRA leave is for employees working for a company with less than 500 employees (“Small Employers”). As of the date of this blog, Small Employers must provide FFCRA leave through December 31, 2020. Check out my podcast on the relationship between accrued leave and the FFCRA leave. Now, if the FFCRA is not extended, then Small Employers may still need to provide paid leave for virus related reasons under the ESLL. If congress extends the FFCRA, then Small Employers must provide the FFCRA and treat the accrued leave in accordance with the federal law. See Podcast.

What does this mean for employers with more than 500 employees?

For employers with more than 500 employees (“Big Employers”), this means that they are on the hook to provide paid leave for their employees who need virus related leave.

Employers with employees in New Jersey should consult with counsel regarding any questions relating to COVID related leave.

Susie Cirilli