Bill Text: NJ A623 | 2024-2025 | Regular Session | Introduced
Bill Title: Concerns temporary disability insurance and family leave insurance benefits.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced) 2024-01-09 - Introduced, Referred to Assembly Labor Committee [A623 Detail]
Download: New_Jersey-2024-A623-Introduced.html
STATE OF NEW JERSEY
221st LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2024 SESSION
Sponsored by:
Assemblywoman SHAVONDA E. SUMTER
District 35 (Bergen and Passaic)
Assemblywoman SHAMA A. HAIDER
District 37 (Bergen)
SYNOPSIS
Concerns temporary disability insurance and family leave insurance benefits.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning temporary disability insurance and family leave insurance benefits and amending various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 3 of P.L.2013, c.8 (C.34:11C-3) is amended to read as follows:
3. a. Any employee of an employer in the State who was a victim of an incident of domestic violence as defined in section 3 of P.L.1991, c.261 (C.2C:25-19) or a sexually violent offense as defined in section 3 of P.L.1998, c.71 (C.30:4-27.26), or whose parent-in-law, sibling, grandparent, grandchild, child, parent, spouse, domestic partner, or civil union partner individual, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship, was a victim shall be entitled to unpaid leave of no more than 20 days in one 12-month period, to be used in the 12-month period next following any incident of domestic violence or any sexually violent offense as provided in this section. For purposes of this section, each incident of domestic violence or any sexually violent offense shall constitute a separate offense for which an employee is entitled to unpaid leave, provided that the employee has not exhausted the allotted 20 days for the 12-month period. The unpaid leave may be taken intermittently in intervals of no less than one day, as needed for the purpose of engaging in any of the following activities as they relate to the incident of domestic violence or sexually violent offense:
(1) seeking medical attention for, or recovering from, physical or psychological injuries caused by domestic or sexual violence to the employee or the employee's parent-in-law, sibling, grandparent, grandchild, child, parent, spouse, domestic partner, or civil union partner individual, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship;
(2) obtaining services from a victim services organization for the employee or the employee's parent-in-law, sibling, grandparent, grandchild, child, parent, spouse, domestic partner, or civil union partner individual, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent;
(3) obtaining psychological or other counseling for the employee or the employee's parent-in-law, sibling, grandparent, grandchild, child, parent, spouse, domestic partner, or civil union partner individual, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship;
(4) participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or the employee's parent-in-law, sibling, grandparent, grandchild, child, parent, spouse, domestic partner, or civil union partner individual, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship, from future domestic or sexual violence or to ensure economic security;
(5) seeking legal assistance or remedies to ensure the health and safety of the employee or the employee's parent-in-law, sibling, grandparent, grandchild, child, parent, spouse, domestic partner, or civil union partner, individual, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship, including preparing for, or participating in, any civil or criminal legal proceeding related to or derived from domestic or sexual violence; or
(6) attending, participating in, or preparing for a criminal or civil court proceeding relating to an incident of domestic or sexual violence of which the employee or the employee's parent-in-law, sibling, grandparent, grandchild, child, parent, spouse, domestic partner, or civil union partner, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship, was a victim.
An eligible employee may elect to use any of the accrued paid vacation leave, personal leave, or medical or sick leave of the employee, or any family temporary disability leave benefits provided pursuant to section 3 of P.L.1948, c.110 (C.43:21-27), during any part of the 20-day period of unpaid leave provided under this subsection. In such case, any paid leave provided by the employer, and accrued pursuant to established policies of the employer, or family temporary disability leave benefits, shall run concurrently with the unpaid leave provided under this subsection and, accordingly, the employee shall receive pay pursuant to the employer's applicable paid leave policy, or family temporary disability leave benefits, during the period of otherwise unpaid leave. If an employee requests leave for a reason covered by both this subsection and the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.) or the federal "Family and Medical Leave Act of 1993," Pub.L.103-3 (29 U.S.C. s.2601 et seq.), the leave shall count simultaneously against the employee's entitlement under each respective law.
Leave granted under this section shall not conflict with any rights pursuant to the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.), the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.), or the federal "Family and Medical Leave Act of 1993," Pub.L.103-3 (29 U.S.C. s.2601 et seq.).
b. Prior to taking the leave provided for in this section, an employee shall, if the necessity for the leave is foreseeable, provide the employer with written notice of the need for the leave, unless an emergency or other unforeseen circumstances precludes prior notice. The notice shall be provided to the employer as far in advance as is reasonable and practical under the circumstances.
c. Nothing contained in this act shall be construed to prohibit an employer from requiring that a period of leave provided pursuant to this section be supported by the employee with documentation of the domestic violence or sexually violent offense which is the basis for the leave. If the employer requires the documentation, the employee shall be regarded as having provided sufficient documentation if the employee provides one or more of the following:
(1) a domestic violence restraining order or other documentation of equitable relief issued by a court of competent jurisdiction;
(2) a letter or other written documentation from the county or municipal prosecutor documenting the domestic violence or sexually violent offense;
(3) documentation of the conviction of a person for the domestic violence or sexually violent offense;
(4) medical documentation of the domestic violence or sexually violent offense;
(5) certification from a certified Domestic Violence Specialist or the director of a designated domestic violence agency or Rape Crisis Center, that the employee or employee's parent-in-law, sibling, grandparent, grandchild, child, parent, spouse, domestic partner, or civil union partner, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship, is a victim of domestic violence or a sexually violent offense; [or]
(6) other documentation or certification of the domestic violence or sexually violent offense provided by a social worker, member of the clergy, shelter worker, or other professional who has assisted the employee or employee's parent-in-law, sibling, grandparent, grandchild, child, parent, spouse, domestic partner, or civil union partner, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship, in dealing with the domestic violence or sexually violent offenses[.]; or
(7) the employee's statement, which need not be notarized or in any particular form, affirming that the employee or the employee's family member is a victim of domestic violence, sexual assault, or stalking and that the leave was taken for one of the purposes provided for in this section.
For the purposes of this subsection:
"Certified Domestic Violence Specialist" means a person who has fulfilled the requirements of certification as a Domestic Violence Specialist established by the New Jersey Association of Domestic Violence Professionals; and "designated domestic violence agency" means a county-wide organization with a primary purpose to provide services to victims of domestic violence, and which provides services that conform to the core domestic violence services profile as defined by the Division of Child Protection and Permanency in the Department of Children and Families and is under contract with the division for the express purpose of providing the services.
"Rape Crisis Center" means an office, institution, or center offering assistance to victims of sexual offenses through crisis intervention, medical and legal information, and follow-up counseling.
d. An employer shall display conspicuous notice of its employees' rights and obligations pursuant to the provisions of this act, in such form and in such manner as the Commissioner of Labor and Workforce Development shall prescribe, and use other appropriate means to keep its employees so informed.
e. No provision of this act shall be construed as requiring or permitting an employer to reduce employment benefits provided by the employer or required by a collective bargaining agreement which are in excess of those required by this act. Nor shall any provision of this act be construed to prohibit the negotiation and provision through collective bargaining agreements of leave policies or benefit programs which provide benefits in excess of those required by this act. This provision shall apply irrespective of the date that a collective bargaining agreement takes effect.
Nothing contained in this act shall be construed as permitting an employer to:
(1) rescind or reduce any employment benefit accrued prior to the date on which the leave taken pursuant to this act commenced; or
(2) rescind or reduce any employment benefit, unless the rescission or reduction of the benefit is based on changes that would have occurred if an employee continued to work without taking the leave provided pursuant to this section.
f. All information provided to an employer pursuant to subsection c. of this section, and any information regarding a leave taken pursuant to this section and any failure of an employee to return to work, shall be retained in the strictest confidentiality, unless the disclosure is voluntarily authorized in writing by the employee or is required by a federal or State law, rule, or regulation.
(cf: P.L.2019, c.37, s.4)
2. Section 3 of P.L.2018, c.10 (C.34:11D-3) is amended to read as follows:
3. a. An employer shall permit an employee to use the earned sick leave accrued pursuant to this act for any of the following:
(1) time needed for diagnosis, care, or treatment of, or recovery from, an employee's mental or physical illness, injury or other adverse health condition, or for preventive medical care for the employee;
(2) time needed for the employee to aid or care for a family member of the employee during diagnosis, care, or treatment of, or recovery from, the family member's mental or physical illness, injury or other adverse health condition, or during preventive medical care for the family member;
(3) absence necessary due to circumstances resulting from the employee, or a family member of the employee, being a victim of domestic or sexual violence, if the leave is to allow the employee to obtain for the employee or the family member: medical attention needed to recover from physical or psychological injury or disability caused by domestic or sexual violence; services from a designated domestic violence agency or other victim services organization; psychological or other counseling; relocation; or legal services, including obtaining a restraining order or preparing for, or participating in, any civil or criminal legal proceeding related to the domestic or sexual violence;
(4) time during which the employee is not able to work because of:
(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 of emergency declared by the President of the United States or the Governor, due to an epidemic or other public health emergency;
(b) the declaration of a state of emergency by the President of the United States or 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; or
(5) time needed by the employee in connection with a child of the employee to attend a school-related conference, meeting, function or other event requested or required by a school administrator, teacher, or other professional staff member responsible for the child's education, or to attend a meeting regarding care provided to the child in connection with the child's health conditions or disability.
b. If an employee's need to use earned sick leave is foreseeable, an employer may require advance notice, not to exceed seven calendar days prior to the date the leave is to begin, of the intention to use the leave and its expected duration, and shall make a reasonable effort to schedule the use of earned sick leave in a manner that does not unduly disrupt the operations of the employer. If the reason for the leave is not foreseeable, an employer may require an employee to give notice of the intention as soon as practicable, if the employer has notified the employee of this requirement. Employers may prohibit employees from using foreseeable earned sick leave on certain dates, and require reasonable documentation if sick leave that is not foreseeable is used during those dates. For earned sick leave of three or more consecutive days, an employer may require reasonable documentation that the leave is being taken for the purpose permitted under subsection a. of this section. If the leave is permitted under paragraph (1) or (2) of subsection a. of this section, documentation signed by a health care professional who is treating the employee or the family member of the employee indicating the need for the leave and, if possible, number of days of leave, shall be considered reasonable documentation. If the leave is permitted under paragraph (3) of subsection a. of this section because of domestic or sexual violence, any of the following shall be considered reasonable documentation of the domestic or sexual violence: medical documentation; a law enforcement agency record or report; a court order; documentation that the perpetrator of the domestic or sexual violence has been convicted of a domestic or sexual violence offense; certification from a certified Domestic Violence Specialist or a representative of a designated domestic violence agency or other victim services organization; or other documentation or certification provided by a social worker, counselor, member of the clergy, shelter worker, health care professional, attorney, or other professional who has assisted the employee or family member in dealing with the domestic or sexual violence. If the leave is permitted under paragraph (4) of subsection a. of this section, a copy of the order of the public official or the determination by the health authority shall be considered reasonable documentation.
c. Nothing in this act shall be deemed to require an employer to provide earned sick leave for an employee's leave for purposes other than those identified in this section, or prohibit the employer from taking disciplinary action against an employee who uses earned sick leave for purposes other than those identified in this section. An employer may provide an offer to an employee for a payment of unused earned sick leave in the final month of the employer's benefit year. The employee shall choose, no later than 10 calendar days from the date of the employer's offer, whether to accept a payment or decline a payment. If the employee agrees to receive a payment, the employee shall choose a payment for the full amount of unused earned sick leave or for 50 percent of the amount of unused earned sick leave. The payment amount shall be based on the same rate of pay that the employee earns at the time of the payment. If the employee declines a payment for unused earned sick leave, or agrees to a payment for 50 percent of the amount of unused sick leave, the employee shall be entitled to carry forward any unused or unpaid earned sick leave to the proceeding benefit year as provided pursuant to subsection a. of section 2 of this act. If the employee agrees to a payment for the full amount of unused earned sick leave, the employee shall not be entitled to carry forward any earned sick leave to the proceeding benefit year pursuant to subsection a. of section 2 of this act.
d. If an employer foregoes the accrual process for earned sick leave hours pursuant to subsection a. of section 2 of this act and provides an employee with the full complement of earned sick leave for a benefit year on the first day of each benefit year, then the employer shall either provide to the employee a payment for the full amount of unused earned sick leave in the final month of the employer's benefit year or carry forward any unused sick leave to the next benefit year. The employer may pay the employee the full amount of unused earned sick leave in the final month of a benefit year pursuant to this subsection only if the employer forgoes, with respect to that employee, the accrual process for earned sick leave during the next benefit year. Unless an employer policy or collective bargaining agreement provides for the payment of accrued earned sick leave upon termination, resignation, retirement or other separation from employment, an employee shall not be entitled under this section to payment of unused earned sick leave upon the separation from employment.
e. Any information an employer possesses regarding the health of an employee or any family member of the employee or domestic or sexual violence affecting an employee or employee's family member shall be treated as confidential and not disclosed except to the affected employee or with the written permission of the affected employee.
f. An employee who is eligible for both earned sick leave pursuant to P.L.2018, c.10 (C.34:11D-1 et seq.) and either temporary disability benefits pursuant to P.L.1948, c. 110 (C.43:21-25 et al.), or family temporary disability leave benefits pursuant to P.L.2008, c. 17 (C.43:21-39.1 et al.) shall have the option of using either the earned sick leave or whichever is applicable of temporary disability benefits or family temporary disability leave benefits, and may select the order in which the different kinds of leave are taken, but shall not receive more than one kind of paid leave simultaneously during any period of time.
(cf: P.L.2020, c.17, s.1)
3. R.S.43:21-4 is amended to read as follows:
43:21-4. An unemployed individual shall be eligible to receive benefits with respect to any week eligible only if:
(a) The individual has filed a claim at an unemployment insurance claims office and thereafter continues to report at an employment service office or unemployment insurance claims office, as directed by the division in accordance with such regulations as the division may prescribe, except that the division may, by regulation, waive or alter either or both of the requirements of this subsection as to individuals attached to regular jobs, and as to such other types of cases or situations with respect to which the division finds that compliance with such requirements would be oppressive, or would be inconsistent with the purpose of this act; provided that no such regulation shall conflict with subsection (a) of R.S.43:21-3.
(b) The individual has made a claim for benefits in accordance with the provisions of subsection (a) of R.S.43:21-6.
(c) (1) The individual is able to work, and is available for work, and has demonstrated to be actively seeking work, except as hereinafter provided in this subsection or in subsection (f) of this section.
(2) The director may modify the requirement of actively seeking work if such modification of this requirement is warranted by economic conditions.
(3) No individual, who is otherwise eligible, shall be deemed ineligible, or unavailable for work, because the individual is on vacation, without pay, during said week, if said vacation is not the result of the individual's own action as distinguished from any collective action of a collective bargaining agent or other action beyond the individual's control.
(4) (A) Subject to such limitations and conditions as the division may prescribe, an individual, who is otherwise eligible, shall not be deemed unavailable for work or ineligible because the individual is attending a training program approved for the individual by the division to enhance the individual's employment opportunities or because the individual failed or refused to accept work while attending such program.
(B) For the purpose of this paragraph (4), any training program shall be regarded as approved by the division for the individual if the program and the individual meet the following requirements:
(i) The training is for a labor demand occupation and is likely to enhance the individual's marketable skills and earning power, except that the training may be for an occupation other than a labor demand occupation if the individual is receiving short-time benefits pursuant to the provisions of P.L.2011, c.154 (C.43:21-20.3 et al.) and the training is necessary to prevent a likely loss of jobs;
(ii) The training is provided by a competent and reliable private or public entity approved by the Commissioner of Labor and Workforce Development pursuant to the provisions of section 8 of the "1992 New Jersey Employment and Workforce Development Act," P.L.1992, c.43 (C.34:15D-8);
(iii) The individual can reasonably be expected to complete the program, either during or after the period of benefits;
(iv) The training does not include on the job training or other training under which the individual is paid by an employer for work performed by the individual during the time that the individual receives benefits; and
(v) The individual enrolls in vocational training, remedial education or a combination of both on a full-time basis, except that the training or education may be on a part-time basis if the individual is receiving short-time benefits pursuant to the provisions of P.L.2011, c.154 (C.43:21-20.3 et al.).
(C) If the requirements of subparagraph (B) of this paragraph (4) are met, the division shall not withhold approval of the training program for the individual for any of the following reasons:
(i) The training includes remedial basic skills education necessary for the individual to successfully complete the vocational component of the training;
(ii) The training is provided in connection with a program under which the individual may obtain a college degree, including a post-graduate degree;
(iii) The length of the training period under the program; or
(iv) The lack of a prior guarantee of employment upon completion of the training.
(D) For the purpose of this paragraph (4), "labor demand occupation" means an occupation for which there is or is likely to be an excess of demand over supply for adequately trained workers, including, but not limited to, an occupation designated as a labor demand occupation by the Center for Occupational Employment Information pursuant to the provisions of subsection d. of section 27 of P.L.2005, c.354 (C.34:1A-86).
(5) An unemployed individual, who is otherwise eligible, shall not be deemed unavailable for work or ineligible solely by reason of the individual's attendance before a court in response to a summons for service on a jury.
(6) An unemployed individual, who is otherwise eligible, shall not be deemed unavailable for work or ineligible solely by reason of the individual's attendance at the funeral of an immediate family member, provided that the duration of the attendance does not extend beyond a two-day period.
For purposes of this paragraph, "immediate family member" includes any of the following individuals: father, mother, mother-in-law, father-in-law, grandmother, grandfather, grandchild, spouse, child, child placed by the Division of Youth and Family Services in the Department of Children and Families, sister or brother of the unemployed individual and any relatives of the unemployed individual residing in the unemployed individual's household.
(7) No individual, who is otherwise eligible, shall be deemed ineligible or unavailable for work with respect to any week because, during that week, the individual fails or refuses to accept work while the individual is participating on a full-time basis in self-employment assistance activities authorized by the division, whether or not the individual is receiving a self-employment allowance during that week.
(8) Any individual who is determined to be likely to exhaust regular benefits and need reemployment services based on information obtained by the worker profiling system shall not be eligible to receive benefits if the individual fails to participate in available reemployment services to which the individual is referred by the division or in similar services, unless the division determines that:
(A) The individual has completed the reemployment services; or
(B) There is justifiable cause for the failure to participate, which shall include participation in employment and training, self-employment assistance activities or other activities authorized by the division to assist reemployment or enhance the marketable skills and earning power of the individual and which shall include any other circumstance indicated pursuant to this section in which an individual is not required to be available for and actively seeking work to receive benefits.
(9) An unemployed individual, who is otherwise eligible, shall not be deemed unavailable for work or ineligible solely by reason of the individual's work as a board worker for a county board of elections on an election day.
(10) An individual who is employed by a shared work employer and is otherwise eligible for benefits shall not be deemed ineligible for short-time benefits because the individual is unavailable for work with employers other than the shared work employer, so long as:
(A) The individual is able to work and is available to work the individual's normal full-time hours for the shared work employer; or
(B) The individual is attending a training program which is in compliance with the provisions of paragraph (4) of subsection (c) of this section and the agreements and certifications required pursuant to the provisions of section 2 of P.L.2011, c.154 (C.43:21-20.4).
(d) With respect to any benefit year commencing before January 1, 2002, the individual has been totally or partially unemployed for a waiting period of one week in the benefit year which includes that week. When benefits become payable with respect to the third consecutive week next following the waiting period, the individual shall be eligible to receive benefits as appropriate with respect to the waiting period. No week shall be counted as a week of unemployment for the purposes of this subsection:
(1) If benefits have been paid, or are payable with respect thereto; provided that the requirements of this paragraph shall be waived with respect to any benefits paid or payable for a waiting period as provided in this subsection;
(2) If it has constituted a waiting period week under the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.);
(3) Unless the individual fulfills the requirements of subsections (a) and (c) of this section;
(4) If with respect thereto, claimant was disqualified for benefits in accordance with the provisions of subsection (d) of R.S.43:21-5.
The waiting period provided by this subsection shall not apply to benefit years commencing on or after January 1, 2002. An individual whose total benefit amount was reduced by the application of the waiting period to a claim which occurred on or after January 1, 2002 and before the effective date of P.L.2002, c.13, shall be permitted to file a claim for the additional benefits attributable to the waiting period in the form and manner prescribed by the division, but not later than the 180th day following the effective date of P.L.2002, c.13 unless the division determines that there is good cause for a later filing.
(e) (1) (Deleted by amendment, P.L.2001, c.17).
(2) (Deleted by amendment, P.L.2008, c.17).
(3) (Deleted by amendment, P.L.2008, c.17).
(4) With respect to benefit years commencing on or after January 7, 2001, except as otherwise provided in paragraph (5) of this subsection, the individual has, during his base year as defined in subsection (c) of R.S.43:21-19:
(A) Established at least 20 base weeks as defined in paragraphs (2) and (3) of subsection (t) of R.S.43:21-19; or
(B) If the individual has not met the requirements of subparagraph (A) of this paragraph (4), earned remuneration not less than an amount 1,000 times the minimum wage in effect pursuant to section 5 of P.L.1966, c.113 (C.34:11-56a4) on October 1 of the calendar year preceding the calendar year in which the benefit year commences, which amount shall be adjusted to the next higher multiple of $100 if not already a multiple thereof.
(5) With respect to benefit years commencing on or after January 7, 2001, notwithstanding the provisions of paragraph (4) of this subsection, an unemployed individual claiming benefits on the basis of service performed in the production and harvesting of agricultural crops shall, subject to the limitations of subsection (i) of R.S.43:21-19, be eligible to receive benefits if during his base year, as defined in subsection (c) of R.S.43:21-19, the individual:
(A) Has established at least 20 base weeks as defined in paragraphs (2) and (3) of subsection (t) of R.S.43:21-19; or
(B) Has earned remuneration not less than an amount 1,000 times the minimum wage in effect pursuant to section 5 of P.L.1966, c.113 (C.34:11-56a4) on October 1 of the calendar year preceding the calendar year in which the benefit year commences, which amount shall be adjusted to the next higher multiple of $100 if not already a multiple thereof; or
(C) Has performed at least 770 hours of service in the production and harvesting of agricultural crops.
(6) The individual applying for benefits in any successive benefit year has earned at least six times his previous weekly benefit amount and has had four weeks of employment since the beginning of the immediately preceding benefit year. This provision shall be in addition to the earnings requirements specified in paragraph (4) or (5) of this subsection, as applicable.
(f) (1) The individual has suffered any accident or sickness not compensable under the workers' compensation law, R.S.34:15-1 et seq. and resulting in the individual's total disability to perform any work for remuneration, and would be eligible to receive benefits under this chapter (R.S.43:21-1 et seq.) (without regard to the maximum amount of benefits payable during any benefit year) except for the inability to work and has furnished notice and proof of claim to the division, in accordance with its rules and regulations, and payment is not precluded by the provisions of R.S.43:21-3(d); provided, however, that for periods prior to the effective date of P.L. , c. (C. )(pending before the Legislature as this bill), benefits paid under this subsection (f) shall be computed on the basis of only those base year wages earned by the claimant as a "covered individual," as defined in subsection (b) of section 3 of P.L.1948, c.110 (C.43:21-27) and for periods on or after the effective date of P.L. , c. (C. )(pending before the Legislature as this bill), weekly and daily benefit rates under this subsection (f) shall be computed in accordance with subsections (b) and (c) of section 16 of P.L.1948, c.110 (C.43:21-40); provided further that no benefits shall be payable under this subsection to any individual:
(A) For any period during which such individual is not under the care of a legally licensed physician, dentist, optometrist, podiatrist, practicing psychologist, advanced practice nurse, or chiropractor, who, when requested by the division, shall certify within the scope of the practitioner's practice, the disability of the individual, the probable duration thereof, and, where applicable, the medical facts within the practitioner's knowledge;
(B) (Deleted by amendment, P.L.1980, c.90.)
(C) For any period of disability due to willfully or intentionally self-inflicted injury, or to injuries sustained in the perpetration by the individual of a crime of the first, second or third degree;
(D) For any week with respect to which or a part of which the individual has received or is seeking benefits under any unemployment compensation or disability benefits law of any other state or of the United States; provided that if the appropriate agency of such other state or the United States finally determines that the individual is not entitled to such benefits, this disqualification shall not apply;
(E) For any week with respect to which or part of which the individual has received or is seeking disability benefits under the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.);
(F) For any period of disability commencing while such individual is a "covered individual," as defined in subsection (b) of section 3 of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-27).
(2) The individual is taking family temporary disability leave [to provide care for a family member with a serious health condition or to be with a child during the first 12 months after the child's birth or placement of the child for adoption or as a foster child with the individual,] and the individual would be eligible to receive benefits under R.S.43:21-1 et seq. (without regard to the maximum amount of benefits payable during any benefit year) except for the individual's unavailability for work while taking the family temporary disability leave, and the individual has furnished notice and proof of claim to the division, in accordance with its rules and regulations, and payment is not precluded by the provisions of R.S.43:21-3(d) provided, however, that for periods prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), benefits paid under this subsection (f) shall be computed on the basis of only those base year wages earned by the claimant as a "covered individual," as defined in subsection (b) of section 3 of P.L.1948, c.110 (C.43:21-27) and for periods on or after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), weekly and daily benefits under this subsection (f) shall be computed in accordance with subsections (b) and (c) of section 16 of P.L.1948, c.110 (C.43:21-40); provided further that no benefits shall be payable under this subsection to any individual:
(A) For any week with respect to which or a part of which the individual has received or is seeking benefits under any unemployment compensation or disability benefits law of any other state or of the United States; provided that if the appropriate agency of such other state or the United States finally determines that the individual is not entitled to such benefits, this disqualification shall not apply;
(B) For any week with respect to which or part of which the individual has received or is seeking disability benefits for a disability of the individual under the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.);
(C) For any period of family temporary disability leave commencing while the individual is a "covered individual," as defined in subsection (b) of section 3 of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-27); or
(D) For any period of family temporary disability leave for a serious health condition of a family member of the claimant during which the family member is not receiving inpatient care in a hospital, hospice, or residential medical care facility and is not subject to continuing medical treatment or continuing supervision by a health care provider, who, when requested by the division, shall certify within the scope of the provider's practice, the serious health condition of the family member, the probable duration thereof, and, where applicable, the medical facts within the provider's knowledge.
(3) Benefit payments under this subsection (f) shall be charged to and paid from the State disability benefits fund established by the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.), and shall not be charged to any employer account in computing any employer's experience rate for contributions payable under this chapter.
(g) Benefits based on service in employment defined in subparagraphs (B) and (C) of R.S.43:21-19 (i)(1) shall be payable in the same amount and on the terms and subject to the same conditions as benefits payable on the basis of other service subject to the "unemployment compensation law"; except that, notwithstanding any other provisions of the "unemployment compensation law":
(1) With respect to service performed after December 31, 1977, in an instructional, research, or principal administrative capacity for an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years, or during a similar period between two regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms;
(2) With respect to weeks of unemployment beginning after September 3, 1982, on the basis of service performed in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms, except that if benefits are denied to any individual under this paragraph (2) and the individual was not offered an opportunity to perform these services for the educational institution for the second of any academic years or terms, the individual shall be entitled to a retroactive payment of benefits for each week for which the individual filed a timely claim for benefits and for which benefits were denied solely by reason of this clause;
(3) With respect to those services described in paragraphs (1) and (2) above, benefits shall not be paid on the basis of such services to any individual for any week which commences during an established and customary vacation period or holiday recess if such individual performs such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such period or holiday recess;
(4) With respect to any services described in paragraphs (1) and (2) above, benefits shall not be paid as specified in paragraphs (1), (2), and (3) above to any individual who performed those services in an educational institution while in the employ of an educational service agency, and for this purpose the term "educational service agency" means a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing those services to one or more educational institutions;
(5) As used in this subsection (g) in order for there to be a "reasonable assurance" all of the following requirements shall be met:
(A) The educational institution has made an offer of employment in the following academic year or term that is either written, oral, or implied;
(B) The offer of employment in the following academic year or term was made by an individual with actual authority to offer employment;
(C) The employment offered in the following academic year or term shall be in the same capacity;
(D) The economic conditions of the employment offered may not be considerably less in the following academic year or term than in the then current academic year or term. For the purpose of this paragraph, "considerably less" means that the claimant will earn less than 90 percent of the amount the claimant earned in the then current academic year or term;
(E) The offer of employment in the following academic year or term is not contingent upon a factor or factors that are within the educational institution's control, including but not limited to, course programming, decisions on how to allocate available funding, final course offerings, program changes, and facility availability; and
(F) Based on a totality of the circumstances, it is highly probable that there is a job available for the claimant in the following academic year or term. If a job offer contains a contingency, primary weight should be given to the contingent nature of the offer of employment. Contingencies that are not necessarily within the educational institution's control, such as funding, enrollment and seniority, may be taken into consideration but the existence of any one contingency should not determine whether it is highly probable that there is a job available for the claimant in the following academic year or term.
(6) Determinations by the department whether claimants have a "reasonable assurance" shall be done on a case-by-case basis.
(7) Each educational institution shall provide the following to the department, in a form, including electronic form, prescribed by the commissioner, no less than 10 business days prior to the end of the academic year or term:
(A) A list of all employees who the educational institution has concluded do not have a reasonable assurance of employment in the following academic year or term, along with information prescribed by the commissioner regarding each such employee, which information shall include, but not be limited to, name and social security number; and
(B) For each employee that the educational institution maintains does have a reasonable assurance of employment in the following academic year or term, a statement explaining the manner in which the employee was given a reasonable assurance of employment, that is, whether it was in writing, oral, or implied, and what information about the offer, including contingencies, was communicated to the individual.
(8) The statement required under subparagraph (B) of paragraph (7) of this subsection (g) may be used by the department in its analysis under paragraphs (5) and (6) of this subsection (g), but it does not conclusively demonstrate that the claimant has a reasonable assurance of employment in the following academic year or term.
(9) Failure of an educational institution to provide the statement required under subparagraph (B) of paragraph (7) of this subsection (g) not less than 10 business days prior to the end of the academic year or term shall result in a rebuttable presumption that the claimant does not have a reasonable assurance of employment in the following academic year or term. This rebuttable presumption shall give rise to an inference that the claimant does not have a reasonable assurance of employment in the following academic year or term, but shall not conclusively demonstrate that the claimant does not have a reasonable assurance of employment in the following academic year or term.
(10) If any part of P.L.2020, c.122 is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the State or the eligibility of employers in this State for federal unemployment tax credits, the conflicting part of that act is inoperative solely to the extent of the conflict, and the finding or determination does not affect the operation of the remainder of this act. Rules adopted under this act shall meet federal requirements that are a necessary condition to the receipt of federal funds by the State or the granting of federal unemployment tax credits to employers in this State.
(11) With respect to service performed on or after the effective date of P.L. , c. (C. )(pending before the Legislature as this bill) this subsection (g) shall not apply to individuals who are eligible for benefits under paragraphs (1) and (2) of subsection f. of R.S.43:21-4.
(h) Benefits shall not be paid to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two successive sports seasons (or similar periods) if such individual performed such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the later of such seasons (or similar periods).
(i) (1) Benefits shall not be paid on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time the services were performed and was lawfully present for the purpose of performing the services or otherwise was permanently residing in the United States under color of law at the time the services were performed (including an alien who is lawfully present in the United States as a result of the application of the provisions of section 212(d)(5) (8 U.S.C. s.1182 (d)(5)) of the Immigration and Nationality Act (8 U.S.C. s.1101 et seq.)); provided that any modifications of the provisions of section 3304(a)(14) of the Federal Unemployment Tax Act (26 U.S.C. s. 3304 (a) (14)) as provided by Pub.L.94-566, which specify other conditions or other effective dates than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented under State law as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, shall be deemed applicable under the provisions of this section.
(2) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.
(3) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of alien status shall be made except upon a preponderance of the evidence.
(j) Notwithstanding any other provision of this chapter, the director may, to the extent that it may be deemed efficient and economical, provide for consolidated administration by one or more representatives or deputies of claims made pursuant to subsection (f) of this section with those made pursuant to Article III (State plan) of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.).
(cf: P.L.2020, c.122)
4. Section 2 of P.L.1948, c.110 (C.43:21-26) is amended to read as follows:
2. This act shall be liberally construed as remedial legislation enacted upon the following declarations of public policy and legislative findings of fact:
The public policy of this State, already established, is to protect employees against the suffering and hardship generally caused by involuntary unemployment. But the "unemployment compensation law" provides benefit payments to replace wage loss caused by involuntary unemployment only so long as an individual is "able to work, and is available for work," and fails to provide any protection against wage loss suffered because of inability to perform the duties of a job interrupted by non-occupational illness, injury, or other disability of the individual or of members of the individual's family. Nor is there any other comprehensive and systematic provision for the protection of working people against loss of earnings due to a non-occupational sickness, accident, or other disability.
The prevalence and incidence of non-occupational sickness, accident, and other disability among employed people is greatest among the lower income groups, who either cannot or will not voluntarily provide out of their own resources against the hazard of an earnings loss caused by non-occupational sickness, accident, or other disability. Disabling sickness or accident occurs throughout the working population at one time or another, and approximately fifteen per centum (15%) of the number of people at work may be expected to suffer disabling illness of more than one week each year.
It was found, prior to the enactment of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.), that then existing voluntary plans for the payment of cash sickness benefits covered less than one-half of the number of working people of this State who were covered by the "unemployment compensation law," and that even that degree of voluntary protection afforded uneven, unequal and sometimes uncertain protection among the various voluntary benefit programs.
While the enactment of that law has provided stable protection for New Jersey's disabled workers, very few workers are protected from income losses caused by the need to take time off from work to care for family members who are incapable of self-care, including newborn and newly-adopted children. The growing portion of middle-income families in which all adult family members work, largely due to economic necessity, points to the desperate need for replacement income when a working family member must take time to care for family members who are unable to take care of themselves. Moreover, the United States is the only industrialized nation in the world which does not have a mandatory workplace-based program for such income support. It is therefore desirable and necessary to fill the gap in existing provisions for protection against the loss of earnings caused by involuntary unemployment, by extending such protection to meet the hazard of earnings loss due to inability to work caused by non-occupational sickness, accidents, or other disabilities of workers and members of their families. Developing systems that help families adapt to the competing interests of work and home not only benefits workers, but also benefits employers by reducing employee turnover and increasing worker productivity.
The foregoing facts and considerations require that there be a uniform minimum program providing in a systematic manner for the payment of reasonable benefits to replace partially such earnings loss and to meet the continuing need for benefits where an individual becomes disabled during unemployment or needs to care for family members incapable of self-care. In order to maintain consumer purchasing power, relieve the serious menace to health, morals and welfare of the people caused by insecurity and the loss of earnings, to reduce the necessity for public relief of needy persons, to increase workplace productivity and alleviate the enormous and growing stress on working families of balancing the demands of work and family needs, and in the interest of the health, welfare and security of the people of this State, such a system, enacted under the police power, is hereby established, requiring the payment of reasonable cash benefits to eligible individuals who are subject to accident or illness which is not compensable under the worker's compensation law or who need to care for family members incapable of self-care.
[While the Legislature recognizes the pressing need for benefits for workers taking leave to care for family members incapable of self-care, it also finds that the need of workers for leave during their own disability continues to be especially acute, as a disabled worker has less discretion about taking time off from work than a worker caring for a family member. Notwithstanding any interpretation of law which may be construed as providing a worker with rights to take action against an employer who fails or refuses to restore the worker to employment after the worker's own disability, the Legislature does not intend that the policy established by P.L.2008, c.17 (C.43:21-39.1 et al.) of providing benefits for workers during periods of family temporary disability leave to care for family members incapable of self-care be construed as granting any worker an entitlement to be restored by the employer to employment held by the worker prior to taking family temporary disability leave or any right to take action, in tort, or for breach of an implied provision of the employment agreement, or under common law, against an employer who fails or refuses to restore the worker to employment after the family temporary disability leave, and the Legislature does not intend that the policy of providing benefits during family temporary disability leave be construed as increasing, reducing or otherwise modifying any entitlement of a worker to return to employment or right of the worker to take action under the provisions of the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.).]
Since the enactment of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.), the State government-operated State temporary disability benefits plan, or "State plan," has proven to be highly efficient and cost effective in providing temporary disability benefits to New Jersey workers. The State plan guarantees the availability of coverage for all employers, regardless of experience, with low overhead costs and a rapid processing of claims and appeals by knowledgeable, impartial public employees. Consequently, the percentage of all employers using the State plan increased from 64% in 1952 to 98% in 2006, while the percentage of employees covered by the State plan increased from 28% to 83%. A publicly-operated, nonprofit State plan is therefore indispensable to achieving the goals of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.)
(cf: P.L.2019, c.37, s.7)
5. Section 3 of P.L.1948, c.110 (C.43:21-27) is amended to read as follows:
3. As used in this act, unless the context clearly requires otherwise:
(a) (1) "Covered employer" means, with respect to whether an employer is required to provide benefits during an employee's own disability pursuant to P.L.1948, c.110 (C.43:21-25 et al.), any individual or type of organization, including any partnership, association, trust, estate, joint-stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, who is an employer subject to the "unemployment compensation law" (R.S.43:21-1 et seq.), except the State, its political subdivisions, and any instrumentality of the State unless such governmental entity elects to become a covered employer pursuant to paragraph (2) of this subsection (a); provided, however, that commencing with the effective date of this act, the State of New Jersey, including Rutgers, The State University and the New Jersey Institute of Technology, shall be deemed a covered employer, as defined herein.
"Covered employer" means, after June 30, 2009, with respect to whether the employer is an employer whose employees are eligible for benefits during periods of family temporary disability leave pursuant to P.L.1948, c.110 (C.43:21-25 et al.), and, after December 31, 2008, whether employees of the employer are required to make contributions pursuant to R.S.43:21-7(d)(1)(G)(ii), any individual or type of organization, including any partnership, association, trust, estate, joint-stock company, insurance company or domestic or foreign corporation, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, who is an employer subject to the "unemployment compensation law" (R.S.43:21-1 et seq.), including any governmental entity or instrumentality which is an employer under R.S.43:21-19(h)(5), notwithstanding that the governmental entity or instrumentality has not elected to be a covered employer pursuant to paragraph (2) of this subsection (a).
(2) Any governmental entity or instrumentality which is an employer under R.S.43:21-19(h)(5) may, with respect to the provision of benefits during an employee's own disability pursuant to P.L.1948, c.110 (C.43:21-25 et al.), elect to become a "covered employer" under this subsection beginning with the date on which its coverage under R.S.43:21-19(h)(5) begins or as of January 1 of any year thereafter by filing written notice of such election with the division within at least 30 days of the effective date. Such election shall remain in effect for at least two full calendar years and may be terminated as of January 1 of any year thereafter by filing with the division a written notice of termination at least 30 days prior to the termination date.
(b) (1) "Covered individual" means, with respect to whether an individual is eligible for benefits during an individual's own disability pursuant to P.L.1948, c.110 (C.43:21-25 et al.), any person who, prior to the effective date of P.L. , c. (C. )(pending before the Legislature as this bill), is in employment, as defined in the "unemployment compensation law" (R.S.43:21-1 et seq.), for which the individual is entitled to remuneration from a covered employer, or who has been out of such employment for less than two weeks; and who, after the effective date of P.L. , c. (C. )(pending before the Legislature as this bill): (i) is in employment, as defined in the "unemployment compensation law" (R.S.43:21-1 et seq.), for which the individual is entitled to remuneration from a covered employer, or who has been out of that employment for less than two weeks, provided however that for purposes of temporary disability benefits employment shall also include services excluded from employment under R.S.43:21-19(i)(1)(D)(i) or (ii) is self-employed and elects to obtain coverage pursuant to subsection (b) of section 4 of P.L.1948, c.110 (C.43:21-28); except that a "covered individual" who is employed by the State of New Jersey, including Rutgers, The State University or the New Jersey Institute of Technology, or by any governmental entity or instrumentality which elects to become a "covered employer" pursuant to P.L.1948. c.110 (C.43:21-25 et al.) prior to July 1, 2019 shall not be eligible to receive any benefits under the "Temporary Disability Benefits Law" until such individual has exhausted all sick leave accumulated as an employee in the classified service of the State or accumulated under terms and conditions similar to classified employees or accumulated under the terms and conditions pursuant to the laws of this State or as the result of a negotiated contract with any governmental entity or instrumentality which elects to become a "covered employer"; and, after June 30, 2019 may be required, prior to receiving any benefits under the "Temporary Disability Benefits Law," to use up to two weeks of sick leave accumulated as an employee in the classified service of the State or accumulated under terms and conditions similar to classified employees or accumulated under the terms and conditions pursuant to the laws of this State or as the result of a negotiated contract with any governmental entity or instrumentality which elects to become a "covered employer," except that the individual shall not be required to use the individual's last weeks' worth of accumulated sick time before receiving the benefits.
"Covered individual" shall not mean, with respect to whether an individual is eligible for benefits during an individual's own disability pursuant to P.L.1948, c.110 (C.43:21-25 et al.), any member of the Division of State Police in the Department of Law and Public Safety.
(2) "Covered individual" means, with respect to whether an individual is eligible for benefits during the individual's period of family temporary disability leave pursuant to P.L.1948, c.110 (C.43:21-25 et al.), any individual who, prior to the effective date of P.L. , c. (C. )(pending before the Legislature as this bill) is in employment, as defined in the "unemployment compensation law" (R.S.43:21-1 et seq.), for which the individual is entitled to remuneration from a covered employer, or who has been out of that employment for less than two weeks; and who, after the effective date of P.L. , c. (C. )(pending before the Legislature as this bill): (i) is in employment, as defined in the "unemployment compensation law" (R.S.43:21-1 et seq.), for which the individual is entitled to remuneration from a covered employer, or who has been out of that employment for less than two weeks, provided however that for purposes of family temporary disability leave benefits employment shall also include services excluded from employment under R.S.43:21-19(i)(1)(D)(i) or (ii) is self-employed and elects to obtain coverage pursuant to subsection (b) of section 4 of P.L.1948, c.110 (C.43:21-28).
(c) "Division" or "commission" means the Division of Unemployment and Temporary Disability Insurance of the Department of Labor and Workforce Development, and any transaction or exercise of authority by the director of the division shall be deemed to be performed by the division.
(d) "Day" shall mean a full calendar day beginning and ending at midnight.
(e) "Disability" shall mean such disability as is compensable under section 5 of P.L.1948, c.110 (C.43:21-29).
(1) "Disability" shall, in the event of a state of emergency declared by the President of the United States or the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, also include 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:
(i) 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
(ii) 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.
(f) "Disability benefits" shall mean any cash payments which are payable to a covered individual for all or part of a period of disability pursuant to P.L.1948, c.110 (C.43:21-25 et al.).
(g) "Period of disability" with respect to any covered individual shall mean:
(1) The entire period of time during which the covered individual is continuously and totally unable to perform the duties of the covered individual's employment because of the covered individual's own disability, except that two periods of disability due to the same or related cause or condition and separated by a period of not more than 14 days shall be considered as one continuous period of disability; provided the individual has earned wages during such 14-day period with the employer who was the individual's last employer immediately preceding the first period of disability; and
(2) On or after July 1, 2009, the entire period of family temporary disability leave taken from employment by the covered individual.
(h) "Wages" shall mean all compensation payable by covered employers to covered individuals for personal services, including commissions and bonuses and the cash value of all compensation payable in any medium other than cash.
(i) (1) (Deleted by amendment, P.L.2001, c.17).
(2) (Deleted by amendment, P.L.2001, c.17).
(3) (Deleted by amendment, P.L.2013, c.221).
(4) "Base week" with respect to periods of disability commencing on or after January 1, 2001, means any calendar week of a covered individual's base year during which the covered individual earned in employment from a covered employer remuneration not less than an amount 20 times the minimum wage in effect pursuant to section 5 of P.L.1966, c.113 (C.34:11-56a4) on October 1 of the calendar year preceding the calendar year in which the benefit year commences, which amount shall be adjusted to the next higher multiple of $1.00 if not already a multiple thereof, except that if in any calendar week an individual subject to this paragraph is in employment with more than one employer, the covered individual may in that calendar week establish a base week with respect to each of the employers from whom the covered individual earns remuneration equal to not less than the amount defined in this paragraph during that week.
(5) In the case of an individual who is laid off or furloughed by an employer curtailing operations because of a state of emergency declared after October 22, 2012, any week in which the individual is separated from employment due to that layoff or furlough, up to a maximum of 13 weeks, shall be regarded as a week which is a "base week" for the purpose of determining whether the individual becomes eligible for benefits pursuant to subsection (d) or (e) of section 17 of P.L.1948, c.110 (C.43:21-41), but shall not be regarded as a base week when calculating the "average weekly wage" pursuant to subsection (j) of this section.
(j) (1) "Average weekly wage" means, with respect to the payment of benefits commencing before the effective date of P.L.2019, c.37 (C.43:21-45.2 et al.), the amount derived by dividing a covered individual's total wages earned from the individual's most recent covered employer during the base weeks in the eight calendar weeks immediately preceding the calendar week in which a period of disability commenced, by the number of such base weeks, and, with respect to the payment of benefits commencing on or after the effective date of P.L.2019, c.37 (C.43:21-45.2 et al.), the amount derived by dividing a covered individual's total wages earned from the individual's most recent covered employer during the base weeks in the base year immediately preceding the calendar week in which a period of disability commenced, or in which the individual submits a claim for the benefits pursuant to subsection h. of section 10 of P.L.2008, c.17 (C.43:21-39.1) or paragraph (3) of subsection (a) of section 25 of P.L.1948, c.110 (C.43:21-49), by the number of base weeks.
(2) With respect to the payment of benefits commencing before the effective date of P.L.2019, c.37 (C.43:21-45.2 et al.), if the computation in paragraph (1) of this subsection (j) yields a result which is less than the individual's average weekly earnings in employment with all covered employers during the base weeks in such eight calendar weeks, then the average weekly wage shall be computed on the basis of earnings from all covered employers during the base weeks in the eight calendar weeks immediately preceding the week in which the period of disability commenced, and, with respect to the payment of benefits commencing on or after the effective date of P.L.2019, c.37 (C.43:21-45.2 et al.), if the computation in paragraph (1) of this subsection (j) yields a result which is less than the individual's average weekly earnings in employment with all covered employers during the base weeks in the base year, then the average weekly wage shall be computed on the basis of earnings from all covered employers during the base weeks in the base year immediately preceding the week in which the period of disability commences, or in which the individual submits a claim for the benefits pursuant to subsection h. of section 10 of P.L.2008, c.17 (C.43:21-39.1) or paragraph (3) of subsection (a) of section 25 of P.L.1948, c.110 (C.43:21-49).
(3) For periods of disability commencing on or after July 1, 2009 and before the effective date of P.L.2019, c.37 (C.43:21-45.2 et al.), if the computations in paragraphs (1) and (2) of this subsection (j) both yield a result which is less than the individual's average weekly earnings in employment with all covered employers during the base weeks in the 26 calendar weeks immediately preceding the week in which the period of disability commenced, then the average weekly wage shall, upon a written request to the department by the individual on a form provided by the department, be computed by the department on the basis of earnings from all covered employers of the individual during the base weeks in those 26 calendar weeks, and, in the case of a claim for benefits from a private plan, that computation of the average weekly wage shall be provided by the department to the individual and the individual's employer.
When determining the "average weekly wage" with respect to a period of family temporary disability leave for an individual who has a period of family temporary disability immediately after the individual has a period of disability for the individual's own disability, the period of disability is deemed to have commenced at the beginning of the period of disability for the individual's own disability, not the period of family temporary disability.
(k) "Child" means a biological, adopted, or foster child, stepchild 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, including a child who becomes the child of a parent pursuant to a valid written agreement between the parent and a gestational carrier.
(l) "Domestic partner" means a domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3).
(m) "Civil union" means a civil union as defined in section 2 of P.L.2006, c.103 (C.37:1-29).
(n) "Family member" means a sibling, grandparent, grandchild, child, spouse, domestic partner, civil union partner, parent-in-law, or parent of a covered individual, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.
(o) "Family temporary disability leave" means leave taken by a covered individual from work with an employer to:
(1) participate in the providing of care, as defined in the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.) and regulations adopted pursuant to that act, for a family member of the individual made necessary by a serious health condition of the family member;
(2) be with a child during the first 12 months after the child's birth, if the individual, or the domestic partner or civil union partner of the individual, is a biological parent of the child, or is a parent of the child pursuant to a valid gestational carrier agreement, or the first 12 months after the placement of the child for adoption or as a foster child with the individual;
(3) engage in activities for which unpaid leave may be taken pursuant to section 3 of the "New Jersey Security and Financial Empowerment Act," P.L.2013, c.82 (C.34:11C-3), on the individual's own behalf, if the individual is a victim of an incident of domestic violence, a sexually violent offense, or to assist a family member of the individual who has been a victim of an incident of domestic violence, or a sexually violent offense, provided that any time taken by an individual who has been a victim of an incident of domestic violence, or a sexually violent offense for which the individual receives benefits for a disability caused by the violence or offense shall be regarded as a period of disability of the individual and not as a period of family temporary disability leave; or
(4) in the event of a state of emergency declared by the President of the United States or 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:
(i) 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]
(ii) 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; or
(iii) the unavailability of the care provider of a child or other family member due to a public health emergency or state of emergency, or the closure of a child's or family member's school or place of care by a local, state or federal public official or at the discretion of the school or place of care due to a public health emergency or state of emergency, including if a school or place of care: is physically closed but providing virtual learning instruction; requires or makes optional virtual learning instruction; or requires or makes available a hybrid of in-person and virtual learning instruction models, except that family temporary disability benefits shall not be provided pursuant to this subparagraph (iii) unless federal funds provided in connection with the emergency or otherwise provided are made available to reimburse the Family Temporary Disability Account established pursuant to R.S.43:21-7 for the cost of those benefits; and
(5) any qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call or order to active duty in the Armed Forces.
"Family temporary disability leave" does not include any period of time in which a covered individual is paid benefits pursuant to P.L.1948, c.110 (C.43:21-25 et al.) because the individual is unable to perform the duties of the individual's employment due to the individual's own disability.
(p) "Health care provider" means a health care provider as defined in the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.), and any regulations adopted pursuant to that act.
(q) "Parent of a covered individual" means a biological parent, foster parent, adoptive parent, or stepparent of the covered individual or a person who was a legal guardian of the covered individual when the covered individual was a child, or who became the parent of the covered individual pursuant to a valid written agreement between the parent and a gestational carrier.
(r) "Placement for adoption" means the time when a covered individual adopts a child or becomes responsible for a child pending adoption by the covered individual.
(s) "Serious health condition" means an illness, injury, impairment or physical or mental condition which requires: inpatient care in a hospital, hospice, or residential medical care facility; or continuing medical treatment or continuing supervision by a health care provider.
(t) "12-month period" means, with respect to an individual who establishes a valid claim for disability benefits during a period of family temporary disability leave, the 365 consecutive days that begin with the first day that the individual first establishes the claim.
(u) "State of emergency" means a natural or man-made disaster or emergency for which a state of emergency has been declared by the President of the United States or the Governor, or for which a state of emergency has been declared by a municipal emergency management coordinator.
(v) "Base year" with respect to benefit years commencing on or after the effective date of P.L.2019, c.37 (C.43:21-45.2 et al.), means the first four of the last five completed calendar quarters immediately preceding the period of disability, except that, if the individual does not have sufficient qualifying weeks or wages in the individual's base year to qualify for benefits, the individual shall have the option of designating that the individual's base year shall be the "alternative base year," which means the last four completed calendar quarters immediately preceding the period of disability; and except that if the individual also does not have sufficient qualifying weeks or wages in the last four completed calendar quarters immediately preceding the period of disability, "alternative base year" means the last three completed calendar quarters immediately preceding the individual's benefit year and, of the calendar quarter in which the period of disability commences, the portion of the quarter which occurs before the commencing of the period of disability. The division shall inform the individual of the individual's options under this subsection. If information regarding weeks and wages for the calendar quarter or quarters immediately preceding the period of disability is not available to the division from the regular quarterly reports of wage information and the division is not able to obtain the information using other means pursuant to State or federal law, the division may base the determination of eligibility for benefits on the affidavit of an individual with respect to weeks and wages for that calendar quarter. The individual shall furnish payroll documentation, if available, in support of the affidavit. A determination of benefits based on an alternative base year shall be adjusted when the quarterly report of wage information from the employer is received if that information causes a change in the determination.
w. "Qualifying exigency" means a need arising out of a covered individual's family member's active duty service or notice of an impending call or order to active duty in the Armed Forces, including, but not limited to, providing for the care or other needs of the military member's child or other family member, making financial or legal arrangements for the military member, attending counseling, attending military events or ceremonies, spending time with the military member during a rest and recuperation leave or following return from deployment or making arrangements following the death of the military member.
(cf: P.L.2020, c.23, s.3)
6. Section 4 of P.L.1948, c.110 (C.43:21-28) is amended to read as follows:
4. a. All covered individuals shall be entitled on and after January first, one thousand nine hundred and forty-nine, to the benefits provided under either a private plan or the State plan of disability benefits, as hereinafter provided.
b. (1) A self-employed person, including a sole proprietor, partner or joint venturer, may elect coverage under P.L.1948, c.110 (C.43:21-25 et seq. and P.L.2008, c.17 (C.43:21-39.1 et al) for an initial period of not less than three years. The self-employed person shall file a notice of election in writing with the director, as required by the division. The election becomes effective on the date of filing the notice. As a condition of election, the self-employed person shall agree to supply any information concerning income that the division deems necessary. A self-employed person who has elected coverage may withdraw from coverage within 30 days after the end of the three-year period of coverage, or at such other times as the director may prescribe by rule, by filing written notice with the director, such withdrawal to take effect not sooner than 30 days after filing the notice.
(2) Those electing coverage under this subsection (b) shall elect coverage for both family temporary disability leave and temporary disability leave.
(3) A self-employed person who has elected coverage under this section shall pay contributions to the State disability benefits fund with respect to income earned from self-employment at the same rate as contributions assessed on an employee pursuant to R.S.43:21-7(d)(1)(G) plus the average rate of contributions assessed on an employer pursuant to R.S.43:21-7(e).
(4) The self-employed person shall file a notice of election in writing with the division, in a manner as required by the division in regulations.
(5) The division may cancel elective coverage if the self-employed person fails to make required payments or file reports. The division may collect due and unpaid premiums and may levy an additional premium for the remainder of the period of coverage. The cancellation shall be effective no later than 30 days from the date of the notice in writing advising the self-employed person of the cancellation.
(6) Those electing coverage are considered employers or employees where the context so dictates.
(7) The division shall adopt regulations for the income of individuals who elect coverage under this section and rules for enforcement of this section.
(cf: P.L.1948, c.110, s.4)
7. Section 5 of P.L.1948, c.110 (C.43:21-29) is amended to read as follows:
5. Compensable disability.
(a) In the case of the disability of a covered individual, disability shall be compensable subject to the limitations of P.L.1948, c.110 (C.43:21-25 et al.) if: the disability is the result of the covered individual suffering an accident or sickness not arising out of and in the course of the individual's employment or if so arising not compensable under the workers' compensation law, R.S.34:15-1 et seq., including if the disability is the result of the donation of any organ or bone marrow by the covered individual, and the disability results in the individual's total inability to perform the duties of employment, except that an individual who is otherwise eligible for benefits but only able to return to work on a reduced basis while recovering from the disability may receive benefits pursuant to the provisions of subsection (b) of section 16 of P.L.1948, c.110 (C.43:21-40).
(b) In the case of an individual taking family temporary disability leave, the leave shall be compensable subject to the limitations of P.L.2008, c.17 (C.43:21-39.1 et al.).
(c) During a state of emergency declared by the President of the United States or the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, family temporary disability leave also includes leave taken for an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of the family member of the employee due to:
(1) 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]
(2) 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 [.]; and
(3) the unavailability of the care provider of a child or other family member due to the public health emergency, state of emergency, or the closure of a child's or family member's school or place of care by a local, state or federal public official or at the discretion of the school or place of care due to a public health emergency or state of emergency, including if a school or place of care: (i) is physically closed but providing virtual learning instruction; (ii) requires or makes optional virtual learning instruction; or (iii) requires or makes available a hybrid of in-person and virtual learning instruction models, except that family temporary disability benefits shall not be provided pursuant to this paragraph (3) unless federal funds provided in connection with the emergency or otherwise provided are made available to reimburse the Family Temporary Disability Account established pursuant to R.S.43:21-7 for the cost of those benefits.
(d) During a state of emergency declared by the President of the United States or the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, disability also includes illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of the employee due to:
(1) 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
(2) 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.
(cf: P.L.2020, c.23, s.4)
8. Section 8 of P.L.1948, c.110 (C.43:21-32) is amended to read as follows:
8. Establishment of private plans. Any covered employer may establish a private plan for the payment of disability benefits in lieu of the benefits of the State plan hereinafter established. Benefits under such a private plan may be provided by a contract of insurance issued by an insurer duly authorized and admitted to do business in this State, or by an agreement between the employer and a union or association representing his employees, or by a specific undertaking by the employer as a self-insurer. Subject to the insurance laws of this State, such a contract of insurance may be between the insurer and the employer; or may be between the insurer and two or more employers, acting for the purpose through a nominee, designee or trustee; or may be between the insurer and the union or association with which the employer has an agreement with respect thereto. Each such private plan shall be submitted in detail to the Division of Employment Security and shall be approved by the division, to take effect as of the first day of the calendar quarter next following, or as of an earlier date if requested by the employer and approved by the Division of Employment Security, if it finds that:
(a) all of the employees of the employer are to be covered under the provisions of such plan with respect to any disability commencing after the effective date of such plan, except as otherwise provided in this section; and
(b) eligibility requirements for benefits are no more restrictive than as provided in this act for benefits payable by the State plan; and
(c) the weekly benefits payable under such plan for any week of disability are at least equal to the weekly benefit amount payable by the State plan, taking into consideration any coverage with respect to concurrent employment by another employer, and the total number of weeks of disability for which benefits are payable under such plan is at least equal to the total number of weeks for which benefits would have been payable by the State plan; and
(d) no greater amount is required to be paid by employees toward the cost of benefits than that prescribed by law as the amount of worker contribution to the State disability benefits fund for covered individuals under the State plan; and
(e) coverage is continued under the plan while an employee remains a covered individual as defined in section three of this act, but not after the employee may become employed by another employer following termination of employment to which the plan relates;
(f) if the employees are subject to the provisions of a collective bargaining agreement, a majority of the employees to be covered by the plan have or shall have agreed to the plan prior to the effective date thereof, if employees are required to contribute to the cost of the private plan and the collective bargaining agreement does not expressly waive the employees' right to a majority election as a condition for the private plan, as provided in section 9 of P.L.1948, c.110 (C.43:21-33).
Subject to the approval of the Division of Employment Security, any such private plan may exclude a class or classes of employees, except a class or classes determined by the age, sex or race of the employees, or by the wages paid such employees, the exclusion of which, in the opinion of the division, will result in a substantial selection of risk adverse to the State plan. Covered individuals so excluded shall be covered by the State plan and subject to the employee contribution required by law to be paid into the State disability benefits fund.
Notice, in a form approved by the director, of the benefits provided by the private plan shall be furnished to the covered employees by the employer by a conspicuous and continuing posting at the place of employment, and by personal notice to each employee at the time of the establishment of the private plan, at any subsequent time of hire, annually after initial provision of the notice, and within three business days of when the employer knows or should know that the employee may have a need for disability benefits or family temporary disability benefits. This notice shall reflect current rates, eligibility requirements, benefit entitlements, and rights of the employees under a private plan pursuant to the provisions of P.L.1948, c.110 (C.43:21-25 et seq.), including appeal rights to the division, and shall include contact information for the private plan and instructions as to how to file for benefits with the private plan. The employer shall ensure that employees have a means of accessing the notice both in their physical workplace and online.
The division shall permit any application for approval by the division of a private plan to be submitted to the division by means of electronic communication, and permit the use of an electronic signature for any signature required in the application, as the term electronic signature is defined in section 2 of P.L.2001, c.116 (C.12A:12-2).
(cf: P.L.2019, c.37, s.9)
9. Section 14 of P.L.1948, c.110 (C.43:21-38) is amended to read as follows:
14. a. With respect to any period of disability for an individual's own disability commencing on or after the effective date of P.L. , c. (C. )(pending before the Legislature as this bill), disability benefits, not in excess of an individual's maximum benefits, shall be payable with respect to disability which commences while a person is a covered individual under the Temporary Disability Benefits Law, and shall be payable with respect to the first day of the disability and each day thereafter that the period of disability continues. With respect to any period of disability for an individual's own disability commencing on or after January 1, 1953, disability benefits, not in excess of an individual's maximum benefits, shall be payable with respect to disability which commences while a person is a covered individual under the Temporary Disability Benefits Law, and shall be payable with respect to the eighth consecutive day of such disability and each day thereafter that such period of disability continues; and if benefits shall be payable for three consecutive weeks with respect to any period of disability commencing on or after January 1, 1968, then benefits shall also be payable with respect to the first seven days thereof. With respect to any period of disability for an individual's own disability commencing on or after the effective date of P.L.2020, c. 172 the disability benefits shall be payable with respect to the first day of the disability, if the disability is as described in subsection (d) of section 5 of P.L.1948, c. 110 (C.43:21-29), or is for leave as described in subsection (c) of section 5 of P.L.1948, c. 110 (C.43:21-29).
b. With respect to any period of family temporary disability leave commencing on or after July 1, 2009 and while an individual is a covered individual, family temporary disability benefits, not in excess of the individual's maximum benefits, shall be payable with respect to the first day of leave taken after the first one-week period following the commencement of the period of family temporary disability leave and each subsequent day of leave during that period of family temporary disability leave; and if benefits become payable on any day after the first three weeks in which leave is taken, then benefits shall also be payable with respect to any leave taken during the first one-week period in which leave is taken. With respect to any period of family temporary disability leave commencing on or after July 1, 2019 and while an individual is a covered individual, family temporary disability benefits, not in excess of the individual's maximum benefits, shall be payable with respect to the first day of leave taken upon the commencement of the period of family temporary disability leave and each subsequent day of leave during that period of family temporary disability leave. The maximum total benefits payable to any eligible individual for any period of disability of the individual commencing on or after January 1, 1968, shall be either 26 times his weekly benefit amount or 1/3 of his total wages in his base year, whichever is the lesser; provided that such maximum amount shall be computed in the next lower multiple of $1.00 if not already a multiple thereof. The maximum total benefits payable to any eligible individual for any period of family temporary disability leave commencing on or after July 1, 2009 and before July 1, 2020, shall be six times the individual's weekly benefit amount or 1/3 of his total wages in his base year, whichever is the lesser; provided that the maximum amount shall be computed in the next lower multiple of $1.00, if not already a multiple thereof. The maximum total benefits payable to any eligible individual for any period of family temporary disability leave commencing on or after July 1, 2020, shall be twelve times the individual's weekly benefit amount; provided that the maximum amount shall be computed in the next lower multiple of $1.00, if not already a multiple thereof.
(cf: P.L.2020, c.23, s.5)
10. Section 15 of P.L.1948, c.110 (C.43:21-39) is amended to read as follows:
15. Limitation of benefits. Notwithstanding any other provision of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.), no benefits shall be payable under the State plan to any individual:
(a) for periods of disability commencing on or before the effective date of P.L. , c. (C. )(pending before the Legislature as this bill), for the first seven consecutive days of each period of disability; except that:
(1) if benefits shall be payable for three consecutive weeks with respect to any period of disability, then benefits shall also be payable with respect to the first seven days thereof; and
(2) (Deleted by amendment, P.L.2019, c.37)
(3) in the case of an individual taking family temporary disability leave, there shall be no waiting period; and
(4) if the benefits shall be payable for a period of disability which is the result of the donation of any organ or bone marrow by the covered individual, then benefits shall be payable with respect to the first seven days thereof; and
(5) the seven-day waiting period shall not apply to benefits for a period of disability if the disability is as described in subsection (d) of section 5 of P.L.1948, c.110 (C.43:21-29), or is for leave as described in subsection (c) of section 5 of P.L.1948, c.110 (C.43:21-29);
After the effective date of P.L. , c. (C. )(pending before the Legislature as this bill), there shall be no waiting period before benefits are paid.
(b) (1) for more than 26 weeks with respect to any one period of disability of the individual;
(2) for more than six weeks with respect to any one period of family temporary disability leave commencing before July 1, 2020 and more than 12 weeks if the period of leave commences on or after July 1, 2020, or for more than 42 days with respect to any one period of family temporary disability leave commencing before July 1, 2020 and more than 56 days if the period of leave commences on or after July 1, 2020, and is taken on an intermittent basis; and
(3) for more than six weeks of family temporary disability leave during any 12-month period commencing before July 1, 2020 and more than 12 weeks for any 12-month period commencing on or after July 1, 2020, or for more than 42 days of family temporary disability leave taken during any 12-month period commencing before July 1, 2020 and more than 56 days if the period of leave commences on or after July 1, 2020, on an intermittent basis, including family temporary disability leave taken pursuant to R.S.43:21-4(f)(2) while unemployed;
(c) for any period of disability which did not commence while the claimant was a covered individual;
(d) for any period of disability of a claimant during which the claimant is not under the care of a legally licensed physician, dentist, optometrist, podiatrist, practicing psychologist, advanced practice nurse, certified nurse midwife, certified midwife, certified professional midwife, or chiropractor, who, when requested by the division, shall certify within the scope of the practitioner's practice, the disability of the claimant, the probable duration thereof, and, where applicable, the medical facts within the practitioner's knowledge or for any period of family temporary disability leave for a serious health condition of a family member of the claimant, during which the family member is not receiving inpatient care in a hospital, hospice, or residential medical care facility or is not subject to continuing medical treatment or continuing supervision by a health care provider, who, when requested by the division, shall certify within the scope of the provider's practice, the serious health condition of the family member, the probable duration thereof, and, where applicable, the medical facts within the provider's knowledge;
(e) (Deleted by amendment, P.L.1980, c.90.)
(f) for any period of disability due to willfully and intentionally self-inflicted injury, or to injury sustained in the perpetration by the claimant of a crime of the first, second, third, or fourth degree, or for any period during which a covered individual would be disqualified for unemployment compensation benefits for gross misconduct under subsection (b) of R.S.43:21-5;
(g) for any period during which the claimant performs any work for remuneration or profit, except that, in a case of a claim for benefits for a period of family temporary disability on or after July 1, 2020 in which the covered individual has more than one employer, the individual shall have the option of claiming benefits for leave taken from one employer, based on wages paid by that employer, on the condition that the individual does not, during the period for which the benefits are paid, increase the amount of employment time with any one employer;
(h) in a weekly amount which together with any remuneration the claimant continues to receive from the employer would exceed regular weekly wages immediately prior to disability;
(i) for any period during which a covered individual would be disqualified for unemployment compensation benefits under subsection (d) of R.S.43:21-5, unless the disability commenced prior to such disqualification;
(j) for any period during which the claimant receives any paid sick leave, vacation time or other leave at full pay from the employer of the individual;
and there shall be no other cause of disqualification or ineligibility to receive disability benefits hereunder except as may be specifically provided in P.L.1948, c.110 (C.43:21-25 et al.).
(cf: P.L.2020, c.23, s.6)
11. Section 10 of P.L.2008, c.17 (C.43:21-39.1) is amended to read as follows:
10. a. Family temporary disability leave shall be compensable subject to the limitations of P.L.2008, c.17 (C.43:21-39.1 et al.) for any period of family temporary disability leave taken by a covered individual which commences after June 30, 2009.
b. An individual shall not simultaneously receive disability benefits for family temporary disability leave and any other disability benefits pursuant to P.L.1948, c.110 (C.43:21-25 et al.) or any unemployment compensation, or any paid sick leave, vacation time or other leave at full pay from the employer of the individual.
c. The employer of an individual [may] shall, upon the request of the employee, notwithstanding any other provision of law, including the provisions of N.J.S.18A:30-1 et seq., permit the individual, during a period of family temporary disability leave, to use any paid sick leave, vacation time or other leave at full pay made available by the employer before the individual uses disability benefits for family temporary disability leave pursuant to P.L.2008, c.17 (C.43:21-39.1 et al.). Nothing in P.L.2008, c.17 (C.43:21-39.1 et al.) shall be construed as nullifying any provision of an existing collective bargaining agreement or employer policy, or preventing any new provision of a collective bargaining agreement or employer policy, which provides employees more generous leave or gives employees greater rights to select which kind of leave is used or select the order in which the different kinds of leave are used. Nothing in P.L.2008, c.17 (C.43:21-39.1 et al.) shall be construed as preventing an employer from providing more generous benefits than are provided under P.L.2008, c.17 (C.43:21-39.1 et al.) or providing benefits which supplement the benefits provided under P.L.2008, c.17 (C.43:21-39.1 et al.) for some or all of the employer's employees.
d. An individual who is entitled to leave under the provisions of the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.) or the federal "Family and Medical Leave Act of 1993," Pub.L.103-3 (29 U.S.C. s.2601 et seq.), shall take any benefits provided for family temporary disability leave pursuant to P.L.2008, c.17 (C.43:21-39.1 et al.) concurrently with leave taken pursuant to the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.) or the federal "Family and Medical Leave Act of 1993," Pub.L.103-3 (29 U.S.C. s.2601 et seq.). [Nothing in P.L.2008, c.17 (C.43:21-39.1 et al.) shall be construed to grant an employee any entitlement to be restored by the employer to employment held by the employee prior to taking family temporary disability leave or any right to take action against an employer who refuses to restore the employee to employment after the leave. Nothing in P.L.2008, c.17 (C.43:21-39.1 et al.) shall be construed to increase, reduce or otherwise modify any entitlement of an employee to return to employment or right of the employee to take action under the provisions of the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.). If an employee receives benefits for family temporary disability leave pursuant to P.L.2008, c.17 (C.43:21-39.1 et al.) with respect to employment with an employer who is not an employer as defined in the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.) and that employer fails or refuses to restore the employee to employment after the period of family temporary disability leave, that failure or refusal shall not be a wrongful discharge in violation of a clear mandate of public policy, and the employee shall not have a cause of action against that employer, in tort, or for breach of an implied provision of the employment agreement, or under common law, for that failure or refusal.]
e. An employee taking family temporary disability leave or an employer from whom the employee is taking the leave shall have the same right to appeal a determination of a benefit for the family temporary disability leave made under P.L.2008, c.17 (C.43:21-39.1 et al.) as an employee or employer has to appeal a determination of a benefit for the disability of the employee under the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.), and any regulations adopted pursuant to the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.).
f. In the event of a period of family temporary disability leave of any individual covered under the State plan, the employer shall, not later than the ninth day of the period of family temporary disability leave, or not later than the ninth day after the employee notifies the employer of an anticipated period of family temporary disability leave pursuant to subsection h. of this section, whichever comes first, including any time in which the employer provides sick leave, vacation or other fully paid leave, issue to the individual and to the division printed notices on division forms containing the name [,] and address [and Social Security number] of the individual, such wage information as the division may require to determine the individual's eligibility for benefits, including any sick pay, vacation or other fully paid time off provided by the employer during the period of family temporary disability leave, and the name, address, and division identity number of the employer. Not later than 30 days after the commencement of the period of family temporary disability leave for which the notice is furnished by the employer, the individual shall furnish to the division a notice and claim for family temporary disability leave benefits. Upon the submission of the notices by the employer and the individual, and the commencement of the compensable portion of the family temporary disability leave pursuant to P.L.2008, c.17 (C.43:21-39.1 et al.), the division may issue benefit payments. In the case of family temporary disability leave taken to care for a family member with a serious health condition, the benefits may be paid for periods not exceeding three weeks pending the receipt of the certification required pursuant to subsection b. of section 11 of P.L.2008, c.17 (C.43:21-39.2). Failure to furnish notice and certification in the manner above provided shall not invalidate or reduce any claim if it shall be shown to the satisfaction of the division not to have been reasonably possible to furnish the notice and certification and that the notice and certification was furnished as soon as reasonably possible.
g. Each covered employer shall conspicuously post notification, in a place or places accessible to all employees in each of the employer's workplaces, [in a form issued by regulation promulgated by the commissioner,] of each covered employee's rights regarding benefits payable pursuant to this section. The division shall promulgate a form that satisfies employers' posting obligations and make it available to employers on their website. The employer shall also provide each employee of the employer with a written copy of the notification: (1) not later than 30 days after the form of the notification is issued by regulation; (2) at the time of the employee's hiring, if the employee is hired after the issuance; (3) [whenever the employee notifies the employer that the employee is taking time off for circumstances under which] annually after initial provision of the notice; (4) within three business days of when the employer knows or should know that the employee [is] may be eligible for benefits pursuant to this section; and (4) at any time, upon the first request of the employee. The employer shall ensure that employees have a means of accessing the notice both in their physical workplace and online.
h. With respect to any period of family temporary disability leave commencing on or after October 4, 2019 if an individual knows in advance when the period will commence, the individual may notify the employer of the anticipated period of family temporary disability leave and submit to the division a claim for benefits for that period, which shall include a statement of when the period will commence and any certification required pursuant to subsection b. of section 11 of P.L.2008, c.17 (C.43:21-39.2), prior to, but not more than 60 days prior to, the date that the period will commence. The division shall process that claim immediately and, upon finding that the claim is valid, shall pay the benefit upon the commencement of the period of family temporary disability leave, except that if the division receives the claim less than 30 days before the commencement of the period, the division shall make the payment not more than 30 days after the receipt of the claim. The periods of family temporary disability leave to which the provisions of this subsection apply shall include, but not be limited to, any of the following if the commencement date of the leave is known in advance: periods of leave for care of a child of the individual after adoption, the placement of a child into foster care, or childbirth, including childbirth under a valid agreement between the individual and a gestational carrier; periods of leave for scheduled medical procedures, treatments, or appointments for a family member of the individual; and periods of leave for scheduled ongoing care of a family member of the individual. If the individual did not establish enough base weeks or have enough total earnings during the base year preceding the week the individual submits the claim, the division shall notify the individual that the individual may file the claim again upon or after the commencement of the period of family temporary disability leave and the division shall then reconsider the individual's eligibility for benefits based on the base year preceding the week in which the period of family temporary disability leave commences.
(cf: P.L.2019, c.37, s.13)
12. Section 11 of P.L.2008, c.17 (C.43:21-39.2) is amended to read as follows:
11. a. In the case of a family member who has a serious health condition, the benefits for family temporary disability leave may be taken intermittently when medically necessary, if: the total time within which the leave is taken does not exceed 12 months; the covered individual provides the employer with a copy of the certification required pursuant to subsection b. of this section; the covered individual provides the employer with prior notice of the leave not less than 15 days before the first day on which benefits are paid for the intermittent leave, unless an emergency or other unforeseen circumstance precludes prior notice; 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, provide the employer, prior to the commencement of intermittent leave, with a regular schedule of the days or days of the week on which the intermittent leave will be taken. In the case of family temporary disability leave benefits to care for a family member with a serious health condition which are taken on a continuous, non-intermittent basis, the covered individual shall: provide the employer with prior notice of the leave in a reasonable and practicable manner, unless an emergency or other unforeseen circumstance precludes prior notice; provide a copy of the certification required pursuant to subsection b. of this section; make a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer.
b. Any period of family temporary disability leave for the serious health condition of a family member of the covered individual shall be supported by certification provided by a health care provider. The certification shall be sufficient if it states:
(1) The date, if known, on which the serious health condition commenced;
(2) The probable duration of the condition;
(3) The medical facts within the knowledge of the provider of the certification regarding the condition;
(4) A statement that the serious health condition warrants the participation of the covered individual in providing health care, as provided in the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.) and regulations adopted pursuant to that act;
(5) An estimate of the amount of time that the covered individual is needed for participation in the care of the family member;
(6) If the leave is intermittent, a statement of the medical necessity for the intermittent leave and the expected duration of the intermittent leave; and
(7) If the leave is intermittent and for planned medical treatment, the dates of the treatment.
c. A covered individual claiming benefits to provide care for a family member with a serious health condition under the State plan or during unemployment shall, if requested by the division, have the family member submit to an examination by a health care provider designated by the division. The examinations shall not be more frequent than once a week, shall be made without cost to the claimant and shall be held at a reasonable time and place. Refusal of the family member to submit to an examination requested pursuant to this subsection shall disqualify the claimant from all benefits for the period in question, except from benefits already paid.
d. Any period of family temporary disability leave to engage in activities for which unpaid leave may be taken pursuant to section 3 of the "New Jersey Security and Financial Empowerment Act," P.L.2013, c.82 (C.34:11C-3), on the individual's own behalf, if the individual is a victim of an incident of domestic violence or a sexually violent offense, or to assist a family member of the individual who has been a victim of an incident of domestic violence or a sexually violent offense, shall, if requested by the division, be supported with certification provided to the division which meets the standards regarding sufficient documentation specified by subsection c. of section 3 of P.L.2013, c.82 (C.34:11C-3), whether or not the employer of the individual requires that documentation. Prior to taking the leave provided for in this subsection, an employee shall, if the necessity for the leave is foreseeable, and unless an emergency or other unforeseen circumstances precludes prior notice, provide the employer with written notice of the need for the leave, which shall be provided to the employer as far in advance as is reasonable and practical under the circumstances.
e. In the case of a qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call or order to active duty in the Armed Forces, the benefits for family temporary disability leave may be taken intermittently.
f. Any period of family temporary disability leave due to a qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call or order to active duty in the Armed Forces shall, if requested by the division, be supported by a certification issued at such time and in such manner as the division may by regulation prescribe. If the division issues a regulation requiring such certification, the employee shall provide, in a timely manner, a copy of such certification to the employer.
(cf: P.L.2019, c.37, s.14)
13. Section 13 of P.L.2008, c.17 (C.43:21-39.4) is amended to read as follows:
13. a. (1) The Commissioner of Labor and Workforce Development shall issue and make available to the public, not later than December 31, 2010, and each subsequent year, annual reports providing data on temporary disability benefits, and, for each annual report issued not later than December 31 of 2019 and each subsequent year, all of the data required by this paragraph (1) as amended by P.L.2018, c.123, including separate data for claims involving pregnancy and childbirth, and family temporary disability benefits, including separate data for each of the following categories of claims: care of newborn children; care of newly adopted children; care of sick children; care of sick spouses, and care of other sick family members. The reports shall include, for each category of claims, the occupations of the workers receiving the benefits, the regular weekly wages earned by the workers receiving the benefits, the number of workers receiving the benefits, the number of workers receiving the benefits that work full-time, the number of workers receiving the benefits that work part-time, the number of workers receiving the benefits that belong to a labor union or employee organization, the number of employers employing each worker in the worker's base year, the amount of benefits paid, the average and median duration of benefits, the average and median weekly benefit, the county in which the employer is located, whether the employer is private or a governmental entity, the employer size based on whether the employer employs less than 30 workers or employs 30 or more workers, and, in the case of family temporary disability benefits, any reported amount of sick leave, vacation or other fully paid time which resulted in reduced benefit duration, and the number of workers claiming intermittent benefits. The report shall provide data by: gender; race, ethnicity or national origin; level of educational attainment; and by any other demographic factors determined to be relevant by the commissioner. The reports shall also provide, for all temporary disability benefits and for all family temporary disability benefits, the number of workers claiming both temporary disability benefits and family temporary disability benefits in the same calendar year, the total costs of benefits and the total cost of administration, the portion of benefits for claims during unemployment, and the total revenues from: employer assessments, where applicable; employee assessments; and other sources. The report shall include claim determinations, redeterminations, and reconsiderations, shown as a percentage of applicants for different types of leave, and shall include information regarding errors or claim issues triggered by each type of claims determination and the number of rejected applications that are not later paid by reason they were initially rejected. In addition to annual reports, de-identified person-level data with all of the above information shall be available to members of the public upon request.
(2) For each of the reports issued not later than December 31 of 2019 and each subsequent year, the report shall also provide the amount and rate of contributions, with the amount of the tax base, made by employers, including, separately, the amounts paid by employers with private plans, for benefits for periods of disability and periods of family disability leave, and the amount and rate of contributions, with the amount of the tax base, made by workers, and benefits paid to workers, including, separately, benefits paid to, and contributions paid by, workers in private plans, for each of the following: benefits for periods of disability, and benefits for periods of family temporary disability leave. The portion of the report regarding private plans shall include: the number of claims received, the number of claims accepted, the amount of benefits paid, the number of workers covered, the administrative costs, and, in the case of private plans in which insurance companies assume the liability for benefits, in addition to the foregoing, premiums earned, dividends to policy holders, benefit losses, and expenses incurred, and in the case of private plans in which insurance companies do not assume the liability for benefits, the amount contributed by workers.
b. The commissioner may, in his discretion, conduct surveys and other research regarding, and include in the annual reports descriptions and evaluations of, the impact and potential future impact of the provisions of P.L.2008, c.17 (C.43:21-39.1 et al.) on the State disability benefits fund, and other effects of those provisions, including the costs and benefits resulting from the provisions of P.L.2008, c.17 (C.43:21-39.1 et al.) for:
(1) Employees and their families, including surveys and evaluations of: what portion of the total number of employees taking leave would not have taken leave, or would have taken less leave, without the availability of benefits; what portion of employees return to work after receiving benefits and what portion are not permitted to return to work; and what portion of employees who are eligible for benefits do not claim or receive them and why they do not;
(2) Employers, including benefits such as reduced training and other costs related to reduced turnover of personnel, and increased affordability of family temporary disability leave insurance through the State plan, with special attention given to small businesses; and
(3) The public, including savings caused by any reduction in the number of people receiving public assistance.
c. The total amount of any expenses which the commissioner determines are necessary to carry out his duties pursuant to this section shall be charged to the Family Temporary Disability Leave Account of the State disability benefits fund, except that the amount shall in no case exceed $150,000 during any fiscal year.
(cf: P.L.2019, c.37, s.16)
14. Section 17 of P.L.1948, c.110 (C.43:21-41) is amended to read as follows:
17. (a) (Deleted by amendment, P.L.1975, c.355).
(b) (Deleted by amendment, P.L.2001, c.17).
(c) (Deleted by amendment, P.L.2001, c.17).
(d) (1) (Deleted by amendment, P.L.2008, c.17).
(2) With respect to periods of disability commencing on or after January 1, 2001 and before the effective date of P.L.2019, c.37 (C.43:21-45.2 et al.), no individual shall be entitled to benefits under this act unless the individual has, within the 52 calendar weeks preceding the week in which the individual's period of disability commenced, established at least 20 base weeks or earned not less than 1,000 times the minimum wage in effect pursuant to section 5 of P.L.1966, c.113 (C.34:11-56a4) on October 1 of the calendar year preceding the calendar year in which the disability commences, which amount shall be adjusted to the next higher multiple of $100.00, if not already a multiple thereof.
(3) With respect to periods of disability commencing on or after the effective date of P.L.2019, c.37 (C.43:21-45.2 et al.) and before the effective date of P.L. , c. (C. )(pending before the Legislature as this bill), no individual shall be entitled to benefits under this act unless the individual has, within the base year preceding the week in which the individual's period of disability commenced, or within the base year preceding the week in which the individual submits a claim for benefits pursuant to subsection h. of section 10 of P.L.2008, c.17 (C.43:21-39.1) or paragraph (3) of subsection (a) of section 25 of P.L.1948, c.110 (C.43:21-49), established at least 20 base weeks or earned not less than 1,000 times the minimum wage in effect pursuant to section 5 of P.L.1966, c.113 (C.34:11-56a4) on October 1 of the calendar year preceding the calendar year in which the disability commences, which amount shall be adjusted to the next higher multiple of $100.00, if not already a multiple thereof. With respect to periods of disability commencing on or after the effective date of P.L. , c. (C. )(pending before the Legislature as this bill), no individual shall be entitled to benefits under P.L.1948, c.110 (C.43:21-25 et al.) unless the individual has, within the base year preceding the week in which the individual's period of disability commenced, or within the base year preceding the week in which the individual submits a claim for benefits pursuant to subsection h. of section 10 of P.L.2008, c.17 (C.43:21-39.1) or paragraph (3) of subsection (a) of section 25 of P.L.1948, c.110 (C.43:21-49), earned $1,000 in remuneration from covered employers or covered self-employment.
If an individual who submits a claim for benefits pursuant to subsection h. of section 10 of P.L.2008, c.17 (C.43:21-39.1) or paragraph (3) of subsection (a) of section 25 of P.L.1948, c.110 (C.43:21-49) did not [establish enough base weeks or] have enough total earnings during the base year preceding the week the individual submits the claim, the division shall notify the individual that the individual may file the claim again upon or after the commencement of the period of disability or family temporary disability leave and the division shall then reconsider the individual's eligibility for benefits based on the base year preceding the week in which the period of disability or family temporary disability leave commences.
(e) With respect to a period of family temporary disability leave for an individual who has a period of family temporary disability immediately after the individual has a period of disability for the individual's own disability, the period of disability is deemed, for the purposes of specifying the time of the 52-week period or base year in which [base weeks or] earnings are required to be established for benefit eligibility pursuant to this subsection (e), to have commenced at the beginning of the period of disability for the individual's own disability, not the period of family temporary disability.
(cf: P.L.2019, c.37, s.18)
15. Section 21 of P.L.2019, c.37 (C.43:21-45.2) is amended to read as follows:
21. a. The division shall [implement disability insurance goals for] ensure the timely determination and prompt payment of temporary disability benefits and family temporary disability benefits under the State plan, as follows:
(1) for temporary disability benefits, in each calendar year:
(a) not less than 40 percent of the original benefit determinations shall be completed within seven days after the commencement of the disability, or the receipt of the benefit claims by the division, whichever is later;
(b) not less than 75 percent of the original benefit determinations shall be completed within 14 days after the commencement of the disability, or the receipt of the benefit claims by the division, whichever is later;
(c) not less than 85 percent of the original benefit determinations shall be completed within 21 days after the commencement of the disability, or the receipt of the benefit claims by the division, whichever is later; and
(d) not less than 90 percent of the original benefit determinations shall be completed within 28 days after the commencement of the disability, or the receipt of the benefit claims by the division, whichever is later; and
(2) for family temporary disability benefits, in each calendar year:
(a) not less than 80 percent of the original benefit determinations shall be completed within seven days after the commencement of the period of family temporary disability leave, or the receipt of the benefit claims by the division, whichever is later;
(b) not less than 85 percent of the original benefit determinations shall be completed within 14 days after the commencement of the period of family temporary disability leave, or the receipt of the benefit claims by the division, whichever is later;
(c) not less than 90 percent of the original benefit determinations shall be completed within 21 days after the commencement of the period of family temporary disability leave, or the receipt of the benefit claims by the division, whichever is later; and
(d) not less than 95 percent of the original benefit determinations shall be completed within 28 days after the commencement of the period of family temporary disability leave, or the receipt of the benefit claims by the division, whichever is later.
b. The commissioner shall, not later than September 30 of 2019 and each subsequent year, issue, provide to the Legislature, and make available to the public on the department's webpage, a report regarding division efforts in the preceding calendar year to [attain the disability insurance goals set pursuant to] comply with this section for temporary disability benefits, and a report regarding those efforts for family temporary disability benefits. Each report shall include:
(1) the total number of claims and the number and percentage of original determinations completed within each number of days specified in the goals set pursuant to this section, and the number and percentage of original determinations completed within the following number of days after the receipt of the benefit claims or the commencement of disability or family temporary disability, whichever is later: 35 days, 42 days, 49 days and 56 days, and the number and percentage of original determinations completed more than 56 days after the receipt of the claims or the commencement of disability or family temporary disability and the average number of days to make the determinations for the claims that took more than 56 days;
(2) the number and percentage of claims received with insufficient information, what portion of those claims were because of failure of claimants to provide sufficient information, what portion of those claims were because of failures of medical providers of claimants to provide sufficient information, and what portion of those claims were because of failures of employers to provide sufficient information;
(3) the number and percentage of claims for which determinations were delayed because of employer failure to make the notifications or disclosures to employees and the division within the amount of time required by subsection (a) of section 25 of P.L.1948, c.110 (C.43:21-49) or subsection f. or g. of section 10 of P.L.2008, c.17 (C.43:21-39.1), the number of complaints received related to employer noncompliance with those requirements, and the number of employers which have been, because of the failures, required, pursuant to section 31 of P.L.1948, c.110 (C.43:21-55), to pay fines or penalties to the division or added amounts to claimants, the total amount of payments to the division, and the total amount of payments to claimants;
(4) the number of personnel in the division and the budgeted cost of salaries and benefits for those personnel; the number of personnel who are processing family temporary disability benefit claims, the number processing other temporary disability claims, and the budgeted cost of salaries and benefits for those personnel; what percentage of total division administrative costs is comprised of those categories of personnel costs; and a comparison of total division administrative costs to the maximum amount permitted to be expended for those division administrative costs pursuant to section 22 of P.L.1948, c.110 (C.43:21-46); and
(5) if any of the disability insurance [goals] timely determination and prompt payment requirements set pursuant to this section were not attained during the year, or it is determined that there are other significant problems in the administration of the disability insurance system, the report shall provide an evaluation of the causes of the deficiencies and a plan to correct them and that plan shall include:
(a) any increase in personnel needed to process claims and make benefit payments expeditiously and accurately;
(b) any measures needed to enforce notification and reporting requirements;
(c) any measures needed to inform employers and employees of their responsibilities to facilitate the timely provision of benefits;
(d) any improvements needed in data processing, telephone and other communications technology, staff training, and other administrative services and equipment;
(e) any measures needed to improve service to claimants and beneficiaries, including implementing easy-to-use, user-friendly application processes, facilitating rapid response times to inquiries and applications, and providing easy access to assistance; and
(f) any other measures appropriate for a full modernization of the administration of all aspects of the disability insurance system.
The plan shall specify any added costs entailed in implementing the plan, which shall be regarded as costs of administration of family temporary disability benefits, and shall specify the amount of any resulting increase in the estimate made pursuant to R.S.43:21-7(d)(1)(G)(i), and (ii), of the amount needed to provide 100 percent of the cost of administration of family temporary disability benefits.
The commissioner shall use that increased estimate in setting the rate of contributions pursuant to those subsections, except that the increase may not result in the total amount credited to those administrative costs exceeding the maximum amount permitted pursuant to subsection (a) of section 22 of P.L.1948, c.110 (C.43:21-46).
c. (1) The division shall, during each fiscal year commencing on or after July 1, 2019, allocate not less than $1,200,000 to disseminate information about the rights and responsibilities of employers and employees regarding temporary disability benefits and family temporary disability benefits by means of programs of educational outreach in communities and workplaces. Of that annual allocation, not less than $600,000 shall be used by the division to enter into contracts with community-based organizations to disseminate information to workers regarding temporary disability benefits and family temporary disability benefits. That allocation shall be regarded as a cost of administration of temporary disability and family temporary disability benefits and be charged to the administration account of the State disability benefit fund. Of the costs charged to the administration account of the State disability benefit fund pursuant to this subsection, the percentage which is charged to the Family Temporary Disability Leave Account shall be equal to the percentage that family temporary disability benefits represents of all temporary disability benefits paid from the State disability benefits fund during the preceding calendar year. The allocation made pursuant to this subsection, including any adjustments in the allocation specified in the plan provided pursuant to paragraph (2) of this subsection, shall not result in the total amount credited to administrative costs exceeding the maximum amount permitted pursuant to subsection (a) of section 22 of P.L.1948, c.110 (C.43:21-46).
(2) The commissioner shall, not later than September 30 of 2022 and September 30 of each subsequent year, issue, provide to the Legislature, and make available to the public on the department's webpage, a report regarding efforts made during the preceding calendar year by the division and by community-based organizations to disseminate information about the rights and responsibilities of employers and employees regarding temporary disability and family temporary disability benefits. Each report shall include, for that preceding calendar year:
(a) an accounting of all funds allocated pursuant to this subsection and all expenditures made from those funds by the division and each community-based organization entering into contracts with the division pursuant to this subsection, and estimates of the number of employers and the number of workers to which the information was disseminated;
(b) an estimate of the number of workers who were eligible for temporary disability and family temporary disability benefits and what percentage of those workers received those benefits, including an assessment of whatever progress was made to increase that percentage; and
(c) a plan to increase the percentage of workers who are aware of the benefits which specifies the amounts to be allocated to the division and community-based organizations for the purposes of this subsection during the subsequent calendar year, provided that the amounts specified shall not be less than or more than the minimum and maximum amounts indicated in paragraph (1) of this subsection.
(3) (a) The commissioner shall appoint an advisory committee to review issues and topics of interest related to the implementation and administration of temporary disability benefits and family temporary disability benefits, which shall include the topic of dissemination of information about the rights and responsibilities of employers and employees regarding temporary disability benefits and family temporary disability benefits.
(b) The committee is composed of nine members:
(i) four members representing employees' interests in paid family and medical leave, who shall include at least one representative of organized labor; at least one representative of an organization that works with immigrant workers; at least one organization that works with women, new parents, or caregivers in the workforce; and at least one representative of the NJ Paid Leave Outreach Collaborative;
(ii) four members representing employers, who shall include at least one representative of an organization representing small businesses; and
(iii) one ex officio member, without a vote, who shall represent the division.
(c) The committee shall meet at least twice a year to provide comment on division and community efforts to ensure workers' access to, and understanding of paid family and medical leave benefits and related rights, including dissemination of information, education efforts, and community outreach related to temporary disability and family temporary disability benefits and the rights and responsibilities of employers and employees regarding temporary disability benefits and family temporary disability benefits, and study issues the committee determines to require its consideration.
(d) The members shall serve without compensation, but are entitled to reimbursement for necessary travel expenses. The committee may utilize such personnel and facilities of the division as it needs, without charge. The division shall provide staff support to the advisory committee. All expenses and reimbursement of necessary travel fees of the advisory committee shall be shall be regarded as a cost of administration of temporary disability and family temporary disability benefits and be charged to the administration account of the State disability benefit fund.
(cf: P.L.2019, c.37, s.21)
16. Section 22 of P.L.1948, c.110 (C.43:21-46) is amended to read as follows:
22. State disability benefits fund. (a) The State disability benefits fund, hereinafter referred to as the fund, is hereby established. The fund shall remain in the custody of the State Treasurer, and to the extent of its cash requirements shall be deposited in authorized public depositories in the State of New Jersey. There shall be deposited in and credited to the fund the amount of worker and employer contributions provided under subparagraph (G) of paragraph (1) of subsection (d) of R.S.43:21-7 and subsection (e) of R.S.43:21-7, less refunds authorized by the chapter (R.S.43:21-1 et seq.) to which this act is a supplement, and the entire amount of interest and earnings from investments of the fund, and all assessments, fines and penalties collected under this act. The fund shall be held in trust for the payment of disability benefits pursuant to this act, for the payment of benefits pursuant to subsection (f) of R.S.43:21-4, and for the payment of any authorized refunds of contributions. All warrants for the payment of benefits shall be issued by and bear only the signature of the Director of the Division of Unemployment and Temporary Disability Insurance or his duly authorized agent for that purpose. All other moneys withdrawn from the fund shall be upon warrant signed by the State Treasurer and countersigned by the Director of the Division of Unemployment and Temporary Disability Insurance of the Department of Labor of the State of New Jersey. The Treasurer shall maintain books, records and accounts for the fund, appoint personnel and fix their compensation within the limits of available appropriations. The expenses of the Treasurer in administering the fund and its accounts shall be charged against the administration account, as hereinafter established. A separate account, to be known as the administration account, shall be maintained in the fund, and there shall be credited to such account an amount determined to be sufficient for proper administration, not to exceed, however, 1/10 of 1% of the wages with respect to which current contributions are payable into the fund pursuant to, prior to the effective date of P.L. , c. (C. )(pending before the Legislature as this bill), paragraph (3), but not paragraph (4), of subsection (a) of R.S.43:21-7, and, after the effective date of P.L. , c. (C. )(pending before the Legislature as this bill), paragraph (4), of subsection (a) of R.S.43:21-7, and the entire amount of any assessments against covered employers, as hereinafter provided, for costs of administration prorated among approved private plans. The costs of administration of this act, including R.S.43:21-4(f), shall be charged to the administration account.
(b) A further separate account, to be known as the unemployment disability account, shall be maintained in the fund. Such account shall be charged with all benefit payments under R.S.43:21-4(f).
Prior to July 1 of each calendar year, the Division of Unemployment and Temporary Disability Insurance of the Department of Labor of the State of New Jersey shall determine the average rate of interest and other earnings on all investments of the State disability benefits fund for the preceding calendar year. An amount equal to the sum of the amounts withdrawn from the unemployment trust fund pursuant to section 23 hereof multiplied by such average rate shall be determined by the division and credited to the unemployment disability account as of the end of the preceding calendar year.
If the unemployment disability account shall show an accumulated deficit in excess of $200,000.00 at the end of any calendar year after interest and other earnings have been credited as provided hereinabove, the division shall determine the ratio of such deficit to the total of all taxable wages paid during the preceding calendar year, and shall make an assessment against all employers in an amount equal to the taxable wages paid by them during such preceding calendar year to employees, multiplied by such ratio, but in no event shall any such assessment exceed 1/10 or 1% of such wages; provided, however, that the assessment made against the State (including Rutgers, The State University and the New Jersey Institute of Technology) shall not exceed the sum of all benefits paid under the provisions of R.S.43:21-4(f) as the result of employment with the State. Such amounts shall be collectible by the division in the same manner as provided for the collection of employee contributions under this chapter (R.S.43:21-1 et seq.). In making this assessment, the division shall furnish to each affected employer a brief summary of the determination thereof. The amount of such assessments collected by the division shall be credited to the unemployment disability account.
As used in this section, "taxable wages" shall mean wages with respect to which employer contributions have been paid or are payable pursuant to subsections (a), (b) and (c) of R.S.43:21-7.
(c) A board of trustees, consisting of the State Treasurer, the Secretary of State, the Commissioner of Labor and Industry, the director of the division, and the State Comptroller, is hereby created. The board shall invest and reinvest all moneys in the fund in excess of its cash requirements, and such investments shall be made in obligations legal for savings banks; provided, however, that the provisions of this subsection shall in all respects be subject to the provisions of P.L.1950, c.270 (C.52:18A-79 et seq.).
(d) There is hereby appropriated, to be paid out of the fund, such amounts as may from time to time be required for the payment of disability benefits, and such amounts as may be required each year, as contained in the annual appropriation act, for the administration of this act, including R.S.43:21-4(f).
(cf: P.L.2019, c.37, s.19)
17. Section 25 of P.L.1948, c.110 (C.43:21-49) is amended to read as follows:
25. (a) (1) Every employer shall post, in prominent locations, notices to employees in the form provided by the division of whether the employer is permitted or required to participate in a temporary disability benefits program pursuant to the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et seq.), and whether the employer does or does not participate. For employers who participate in a temporary disability benefits program, the notice shall also describe the temporary disability benefits available to the employees and prominently disclose that pregnancy is regarded by this law as a disability and that pregnant employees are regarded as disabled and entitled to temporary disability benefits to the same extent as other disabled employees. Upon the request of an employer, the division shall, without charge, provide the employer with a copy of each applicable notice, suitable for reproduction by the employer. Each employer participating in the State plan or a private plan shall give a printed copy of benefit instructions to any disabled employee [as soon as] within three business days from when the employer [becomes aware] knows or should know of the disability or to any employee with a need for family temporary disability leave within three business days from when the employer knows or should know of the need for leave. The employer shall also provide each employee employed by the employer with a written copy of the notice: not later than 30 days after the form of the notice is issued; at the time of the employee's hiring, if the employee is hired after the issuance; annually after initial provision of the notice; and at any time, when first requested by the employee. The employer shall ensure that employees have a means of accessing the notice both in their physical workplace and online.
(2) In addition, in the event of the disability of any individual covered under the State plan, the employer shall, not later than the ninth day of disability, or not later than the ninth day after the individual notifies the employer of an anticipated period of disability pursuant to paragraph (3) of this section, whichever comes first, issue to the individual and to the division printed notices on division forms containing the name, address [and Social Security number of the individual], such wage information as the division may require to determine the individual's eligibility for benefits, and the name, address, and division identity number of the employer. Not later than 30 days after the commencement of the period of disability for which such notice is furnished, the individual shall furnish to the division a notice and claim for disability benefits under the State plan or for disability during unemployment. Upon the submission of such notices by the employer and the individual, and the commencement of the compensable portion of the disability leave pursuant to the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et seq.), the division may issue benefit payments for periods not exceeding three weeks pending the receipt of medical proof. When requested by the division, such notice and proof shall include certification of total disability by the attending physician, or a record of hospital confinement. Failure to furnish notice and proof within the time or in the manner above provided shall not invalidate or reduce any claim if it shall be shown to the satisfaction of the division not to have been reasonably possible to furnish such notice and proof and that such notice and proof was furnished as soon as reasonably possible.
(3) With respect to any period of disability commencing on or after October 4, 2019, if an individual knows in advance when the period will commence, the individual may notify the employer of the anticipated period of disability and submit to the division a claim for benefits for that period, which shall include a statement of when the period will commence and any certification requested by the division pursuant to this section, prior to, but not more than 60 days prior to, the date on which the period will commence. The division shall process that claim immediately and, upon a finding that the claim is valid, shall pay the benefit upon the commencement of the period, except that if the division receives the claim less than 30 days before the commencement of the period, the division shall make the payment not more than 30 days after the receipt of the claim. The periods of disability leave to which the provisions of this paragraph apply shall include, but not be limited to, any of the following if the commencement date of the leave is known in advance: disability related to pregnancy or childbirth; disability related to scheduled medical procedures, treatments, or appointments for the individual; and disability related to scheduled ongoing care of the individual. If an individual did not establish enough base weeks or have enough total earnings during the base year preceding the week the individual submits the claim for benefits, the division shall notify the individual that the individual may file the claim again upon or after the commencement of the period of disability and the division shall then reconsider the individual's eligibility for benefits based on the base year preceding the week in which the period of disability commences.
(b) A person claiming benefits under the State plan or for disability during unemployment shall, when requested by the division, submit at intervals, but not more often than once a week, to an examination by a legally licensed physician, dentist, podiatrist, chiropractor, certified nurse midwife, certified midwife, certified professional midwife, advanced practice nurse or public health nurse designated by the division. In all cases of physical examination of a claimant, the examination shall be made by a designee of the division, who shall be the same sex as the claimant if so requested by the claimant. All such examinations by physicians, dentists, podiatrists, chiropractors, certified nurse midwives, certified midwives, certified professional midwives, or nurses designated by the division shall be without cost to the claimant and shall be held at a reasonable time and place. Refusal to submit to such a requested examination shall disqualify the claimant from all benefits for the period of disability in question, except as to benefits already paid.
(c) All medical records of the division, except to the extent necessary for the proper administration of this act, shall be confidential and shall not be published or be open to public inspection (other than to public employees in the performance of their public duties) in any manner revealing the identity of the claimant, or the nature or cause of disability nor admissible in evidence in any action or special proceeding other than one arising under this act.
(cf: P.L.2019, c.37, s.20)
18. Section 24 of P.L.2019, c.37 (C.43:21-55.2) is amended to read as follows:
24. a. Any covered individual who took any temporary disability benefits pursuant to P.L.1948, c.110 (C.43:21-25 et al.), or family temporary disability leave benefits pursuant to P.L.2008, c.17 (C.43:21-39.1 et al.), shall, upon the expiration of the leave, be entitled to be restored by the employer to the position held by the employee when the leave commenced or to an equivalent position of like seniority, status, employment benefits, pay, and other terms and conditions of employment. If, during that period of leave, the employer has a reduction in force or layoffs and the employee would have lost the employee's position had the employee not been on the leave as a result of the reduction in force or layoff, or pursuant to the good faith operation of a bona fide layoff and recall system including a system under an applicable collective bargaining agreement, the employee shall not be entitled to reinstatement to the former or an equivalent position, if the employer notifies the employee of the employee's right pursuant to paragraph (2) of subsection (c) of R.S.43:21-19 to file a claim for unemployment benefits after the leave period ends. The employee shall retain all rights under any applicable layoff and recall system, including a system under a collective bargaining agreement, as if the employee had not taken the leave.
b. An employer shall not discharge, harass, threaten, or otherwise discriminate or retaliate against an employee with respect to the compensation, terms, conditions, or privileges of employment on the basis that the employee requested or took any temporary disability benefits pursuant to P.L.1948, c.110 (C.43:21-25 et al.), or family temporary disability leave benefits pursuant to P.L.2008, c.17 (C.43:21-39.1 et al.), including retaliation by refusing to [restore] reinstate to equivalent employment the employee following a period of leave [, except that, pursuant to section 2 of P.L.1948, c.110 (C.43:21-26), nothing in this section or any other section of P.L.1948, c.110 (C.43:21-25 et al.) or P.L.2008, c.17 (C.43:21-39.1 et al.) shall be construed as increasing, reducing or otherwise modifying any entitlement provided to a worker by the provisions of the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.) to be restored to employment by the employer after a period of family temporary disability leave] as required by subsection a. of this section .
c. During any period that temporary disability benefits are provided pursuant to P.L.1948, c.110 (C.43:21-25 et al.), or family temporary disability leave benefits provided pursuant to P.L.2008, c.17 (C.43:21-39.1 et al.), the employer shall:
(1) maintain coverage under any group health insurance policy, group subscriber contract or health care plan at the same level and with the same or equivalent terms, including the employee's cost of coverage, such as premium contributions, co-pays, and deductibles, as would have been provided if the employee's employment had been continuous throughout that period; and
(2) provide, in addition to the benefits required by this section, any other employment benefits that would be provided pursuant to the employer's policy for employees on temporary leave from employment.
[b.] d. Upon a violation of subsection a., b. or c. of this section, including a failure of the employer to restore an employee to the position the employee held prior to leave under subsection b. of this section, an employee or former employee affected by the violation may take one of the following actions:
(1) file a written complaint with the Commissioner of Labor and Workforce Development to seek reinstatement to employment. If the employer is found by a preponderance of the evidence to be in violation, the commissioner shall order the reinstatement the employee to the position previously held with no reduction in seniority, status, employment benefits, pay, and other terms and conditions of employment, compensation for any lost wages, benefits and other remuneration, and fine the employer $2,500 for each violation of subsection a., b. or c. of this section, or
(2) institute a civil action in the Superior Court for relief. All remedies available in common law tort actions shall be available to a prevailing plaintiff. The court may also order any or all of the following relief:
[(1)] (a) an assessment of a civil fine of not less than $1,000 and not more than $2,000 for the first violation of any of the provisions of this section and not more than $5,000 for each subsequent violation;
[(2)] (b) an injunction to restrain the continued violation of any of the provisions of this section;
[(3)] (c) reinstatement of the employee to the same position or to a position equivalent to that which the employee held prior to
unlawful discharge or retaliatory action, or other failure to reinstate the employee in violation of this section;
[(4)] (d) reinstatement of full fringe benefits and seniority rights;
[(5)] (e) compensation for any lost wages, benefits and other remuneration; and
[(6)] (f) payment of reasonable costs and attorney's fees.
e. An employee who is eligible for both earned sick leave pursuant to P.L.2018, c.10 (C.34:11D-1 et seq.). and either temporary disability benefits pursuant to P.L.1948, c. 110 (C.43:21-25 et al.), or family temporary disability leave benefits pursuant to P.L.2008, c. 17 (C.43:21-39.1 et al.) shall have the option of using either the earned sick leave or whichever is applicable of temporary disability benefits or family temporary disability leave benefits, and may select the order in which the different kinds of leave are taken, but shall not receive more than one kind of paid leave simultaneously during any period of time.
(cf: P.L.2019, c.37, s.24)
19. This act shall take effect on the 90th day after enactment.
STATEMENT
This bill:
1. Extends TDI and FLI benefits to employees providing care for family members needed because of a public health emergency or state of emergency, including, if federal funds are available, the closure of a school or place of care.
2. Extends FLI benefits to care needed because a certain exigencies arising out of active military service.
3. Sets requirements regarding employer notification to employees of their rights, including their right to unemployment benefits after leave if an employee is not restored to employment after leave because of a reduction in force occurring during the leave.
4. Provides that an employee who is eligible for both earned sick leave and either TDI or FLI benefits, may use either the earned sick leave or whichever is applicable of the TDI or FLI benefits, and may select the order in which they are taken, but may not receive more than one kind of paid leave benefits during any period of time.
5. Extends TDI or FLI benefits to an employee regardless of the amount of time an employee has worked or the amount of the employees earnings, so long as the employee earns at least $1,000 during the employee's base year.
6. Provides that the weekly benefit rates for TDI or FLI benefits taken during a period of unemployment are set at the rates for TDI or FLI benefits, instead of the rates for unemployment compensation.
7. Provides the option to self-employed individuals of obtaining coverage for TDI and FLI benefits if they make contributions to the TDI fund which are the equivalent to the contributions made by employers and employees.
8. Eliminates the seven-day waiting period for TDI benefits;
9. Provides the right to reinstatement to equivalent employment after a period of leave applies to all periods in which TDI or FLI benefits are provided, including extending that right to FLI leave takers employed by employers with less than 30 employees, as is presently the case for TDI leave takers.
10. Requires, when employees take leave with TDI or FLI benefits, that employers maintain health insurance coverage during the leave period on the same terms as when the employees are working.
11. Provides that an employee's statement that the employee or member of the employee's family is a victim of domestic or sexual violence is sufficient documentation in a claim for benefits.
