NJ Department of Law & Public Safety

2601 et seq., allows eligible employees of a covered employer to take job protected, unpaid leave for up to a total of 12 weeks in any 12 month period. Under the FMLA, leave may be taken in connection with the birth or adoption of a child, or the placement of a child with the employee for adoption or foster care, or the serious health condition of a family member, or because the employee's own serious health condition makes the employee unable to perform the functions of his or her job. The U.S. Labor Department's Wage and Hour Division promulgated final rules under the FMLA, effective February 6, 1995. 29 C.F.R. 825. Although the Division's rules predate these Federal protections, the Division's rules are largely consistent with the Federal rules. Nevertheless, because the substantive provisions of the FMLA and the NJFLA differ in several important respects, the Division's rules have provided important guidance to employers in interpreting and complying with the NJFLA. The proposed repeal of N.J.A.C. 13:14-1.6 and proposed adoption of a new N.J.A.C. 13:14-1.6 clarify the manner in which the NJFLA relates to leaves granted by other laws, such as the Federal FMLA. The proposed new rule includes examples to show that, when the NJFLA and another law provide leaves for the same purpose, the leaves are regarded as concurrent, and the employee exhausts both Federal and State leave entitlements. However, an employee who takes leave under another law for a purpose not covered by the NJFLA does not forfeit the right to subsequently take leave under the NJFLA for a reason covered by the NJFLA. The proposed new rule also clarifies the relation of the NJFLA to the Temporary Disability Benefits Law, as is set forth in the NJFLA. The NJFLA provides that leave granted under the NJFLA is "in addition to and shall not abridge nor conflict with, any rights" granted by the Temporary Disability Benefits Law. N.J.S.A. 34:11B-13. The Temporary Disability Benefits Law provides benefit payments to partially replace wages lost when an individual is unable to perform the duties of a job due to the employee's own disability, either while employed or during unemployment. N.J.S.A. 43:21-26. While the Temporary Disability Benefits Law provides for partial wage replacement, it does not establish any right to "disability leave" from a job. To clarify this distinction, the Division proposes to repeal N.J.A.C. 13:14-1.6, which provides that "disability leave" is separate from and in addition to any leave granted under the NJFLA. The Division also proposes to amend N.J.A.C. 13:14-1.2 to delete the definition of "disability leave," as it will no longer be relevant to any provision of the rules under the proposed repeal of N.J.A.C. 13:14-1.6 and adoption of new N.J.A.C. 13:14-1.6. Instead, the proposed new N.J.A.C. 13:14-1.6 includes a subsection which clarifies that any employee's receipt of payments under the Temporary Disability Benefits Law does not limit or impair the employee's right to job protected leave to care for a covered family member, and provides examples to clarify the relation of leaves granted under the NJFLA with other Federal and State law. Social Impact The proposed amendment and new rule will have a beneficial social impact upon all eligible employees in the State of New Jersey. The amendment and new rule implement the stated purpose of the Legislature in promoting the economic security of families by guaranteeing jobs to employees who choose to take a leave due to the birth or adoption of a child or because of the serious health condition of a family member. The amendment and new rule also recognize the practical difficulties facing employers in providing the leave required by the NJFLA and, therefore, make provisions to protect employers from possible employee abuse. Moreover, the amendment and new rule will have a beneficial social impact in that they will promote compliance with the law and will clarify provisions of the NJFLA which may be the cause of confusion among employers and employees regarding the types and terms of leave permitted. Economic Impact The proposed amendment and new rule will not economically impact employers to a degree greater than they are presently impacted by the NJFLA. Moreover, the economic impact to employers will be minimal since the NJFLA and the rules only require employers to grant unpaid leave to eligible employees. Additionally, the rules have no economic impact on employers with fewer than 50 employees since these small businesses are exempt from the NJFLA. Federal Standards Statement A Federal standards analysis is not required because the proposed amendment and new rule are intended to clarify and interpret the New Jersey Family Leave Act, and are not intended to implement or comply with any program established under Federal law or under a State statute that incorporates or refers to Federal law, standards or requirements. While there is substantial overlap between the FMLA and the NJFLA, the amendment and new rule are designed to facilitate enforcement and compliance with the New Jersey Family Leave Act, and are not governed or affected by the FMLA. Further, the amendment and new rule are specifically intended to clarify the ways in which the NJFLA differs, substantively and procedurally, from the Federal statute. Jobs Impact The proposed amendment and new rule will not result in the generation or loss of jobs. Agriculture Industry Impact The proposed amendment and new rule will not have an impact on the agriculture industry. Regulatory Flexibility Analysis The proposed amendment and new rule will not impose any reporting or recordkeeping requirements on small businesses, as the term is defined in the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. The rules apply to businesses with 50 or more employees. The amendment and new rule do not impose any reporting, recordkeeping or other compliance requirements on covered employers, or other compliance requirements beyond the compliance requirements imposed by the NJFLA itself. Any recordkeeping which may be generated by the NJFLA is minimal and should be able to be performed by an employer's current personnel or benefits officer. Even if some employers hire temporary employees to assume the duties normally performed by the employees who are on leave, since the NJFLA does not require the employer to pay the employee who is on leave, the rules do not require the employer to pay two employees while using a temporary employee to replace an employee on family leave. Full text of the proposal follows : << NJ ADC 13:14-1.2 >> 13:14-1.2 Definitions The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. ... <<-"Disability leave" means any period of leave for which the employee is disabled (that is, unable to perform his or her work) including, but not limited to, any period of time during which an employee is collecting disability benefits.->> ... "Employer" means an employer as defined in the Act which employs 50 or more employees, whether employed in New Jersey or not, <<-who have worked->> <<+for+>> each working day <<-for->> <<+during each of+>> 20 or more <<+calendar+>> workweeks <<+in+>> <<-during->> the <<+then+>> current or immediately preceding calendar year. ... << NJ ADC 13:14-1.6 >> 13:14-1.6 <<-Disability leave->> <<+Relation with other laws+>> <<-Disability leave is separate from, and in addition to, any family leave provided by the Act.->> <<+(a) Where an employee requests leave for a reason covered by both the Act and another law, the leave simultaneously counts against the employee's entitlement under both laws. For example, the Federal Family and Medical Leave Act (FMLA), 29 U.S.C.

2601 et seq., provides leave to care for a seriously ill spouse and the Act also provides leave for that reason. Under this example, since the leave is taken for a purpose covered by both the FMLA and the Act, the leave simultaneously counts against the employee's entitlement under both laws.+>> <<+(b) Medical or disability leave granted under other laws, but not granted under the Act, shall not abridge an employee's right to leave or other protections granted under the Act. For example, the FMLA provides leave for an employee's own disability, but disability leaves are not covered by the Act. Some situations which may arise under this example include, but are not limited to:+>> <<+1. If an employee first takes FMLA leave because of his or her own disability, including a disability related to pregnancy or childbirth, the employee would be entitled to an additional 12 weeks of leave within 24 months under the Act to care for a seriously ill family member or newly born or adopted child, because the prior disability leave was taken for a purpose not covered by the Act;+>> <<+2. If an employee takes FMLA leave because of his or her own disability, including a disability related to pregnancy or childbirth, and a family member becomes seriously ill or a child is born or adopted while he or she is still on FMLA disability leave, the intervening birth, adoption or serious family illness does not convert the FMLA leave to a leave under the Act. For as long as the employee continues to be eligible for FMLA leave based on his or her own disability, the leave does not simultaneously count against the employee's entitlement under the Act.+>> <<+(c) An employee retains all rights under the Temporary Disability Benefits Law, N.J.S.A. 43:21-25 et seq., when taking leave under the Act, and an employee's receipt of disability benefits or other compensation does not limit or impair the employee's right to take leave to care for a covered family member under the Act while receiving such benefits. For example, if an employee is receiving temporary disability benefits based on a post-partum medical condition, but has exhausted her Federal FMLA leave, she is entitled to begin her twelve weeks of leave under the Act to care for her newly born child, even though she is still disabled as defined by the Temporary Disability Benefits Law and is receiving compensation under that law.+>> 34 N.J.R. 208(a) END OF DOCUMENT