Bill Text: NJ S2310 | 2020-2021 | Regular Session | Introduced
Bill Title: Concerns reinstatement of workers after taking family leave.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2020-04-09 - Introduced in the Senate, Referred to Senate Labor Committee [S2310 Detail]
Download: New_Jersey-2020-S2310-Introduced.html
Sponsored by:
Senator JOSEPH P. CRYAN
District 20 (Union)
Senator TROY SINGLETON
District 7 (Burlington)
SYNOPSIS
Concerns reinstatement of workers after taking family leave.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning reinstatement of workers after taking family leave 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.1989, c.261 (C.34:11B-3) is amended to read as follows:
3. As used in this act:
a. "Child" means a biological, adopted, foster child, or resource family child, stepchild, legal ward, or child of a parent, including a child who becomes the child of a parent pursuant to a valid written agreement between the parent and a gestational carrier.
b. "Director" means the Director of the Division on Civil Rights.
c. "Division" means the Division on Civil Rights in the Department of Law and Public Safety.
d. "Employ" means to suffer or permit to work for compensation, and includes ongoing, contractual relationships in which the employer retains substantial direct or indirect control over the employee's employment opportunities or terms and conditions of employment.
e. "Employee" means a person who is employed for at least 12 months by an employer, with respect to whom benefits are sought under this act, for not less than 1,000 base hours during the immediately preceding 12-month period. Any time, up to a maximum of 90 calendar days, during which a person is laid off or furloughed by an employer due to that employer curtailing operations because of a state of emergency declared after October 22, 2012, shall be regarded as time in which the person is employed for the purpose of determining eligibility for leave time under this act. In making the determination, the base hours per week during the layoff or furlough shall be deemed to be the same as the average number of hours worked per week during the rest of the 12-month period.
f. "Employer" means a person or corporation, partnership, individual proprietorship, joint venture, firm or company or other similar legal entity which engages the services of an employee and which:
(1) (Deleted by amendment, P.L.2019, c.37);
(2) (Deleted by amendment, P.L.2019, c.37);
(3) [With respect to the period of time from the 1,095th day following the effective date of P.L.1989, c.261 (C.34:11B-1 et seq.) through June 30, 2019, employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the then current or immediately preceding calendar year; and] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)
(4) With respect to any period of time [on or after] from June 30, 2019 until the effective date of P.L. c. (pending before the Legislature as this bill), employs 30 or more employees for each working day during each of 20 or more calendar workweeks in the then current or immediately preceding calendar year; and
(5) With respect to any period of time after the effective date of P.L. c. (pending before the Legislature as this bill), employs one or more employees for each working day during each of 20 or more calendar workweeks in the then current or immediately preceding calendar year.
"Employer" includes the State, any political subdivision thereof, and all public offices, agencies, boards or bodies.
g. "Employment benefits" means all benefits and policies provided or made available to employees by an employer, and includes group life insurance, health insurance, disability insurance, sick leave, annual leave, pensions, or other similar benefits.
h. "Parent" means a person who is the biological parent, adoptive parent, foster parent, resource family parent, step-parent, parent-in-law or legal guardian, having a "parent-child relationship" with a child as defined by law, or having sole or joint legal or physical custody, care, guardianship, or visitation with a child, or who became the parent of the child pursuant to a valid written agreement between the parent and a gestational carrier.
i. "Family leave" means leave from employment so that the employee may provide care made necessary by reason of:
(1) the birth of a child of the employee, including a child born pursuant to a valid written agreement between the employee and a gestational carrier;
(2) the placement of a child into foster care with the employee or in connection with adoption of such child by the employee; or
(3) the serious health condition of a family member of the employee.
j. "Family member" means a child, parent, parent-in-law, sibling, grandparent, grandchild, spouse, domestic partner, or one partner in a civil union couple, 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.
k. "Reduced leave schedule" means leave scheduled for fewer than an employee's usual number of hours worked per workweek but not for fewer than an employee's usual number of hours worked per workday, unless agreed to by the employee and the employer.
l. "Serious health condition" means an illness, injury, impairment, or physical or mental condition which requires:
(1) inpatient care in a hospital, hospice, or residential medical care facility; or
(2) continuing medical treatment or continuing supervision by a health care provider.
During a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, "serious health condition" shall also include 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 a 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 a 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 because of suspected exposure to the communicable disease.
m. "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.
(cf: P.L.2020, c.17, s.2)
2. Section 2 of P.L.1948, c.110 (C.43:21-26) is amended to read as follows:
2. Purpose. 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 nonoccupational 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 nonoccupational sickness, accident, or other disability.
The prevalence and incidence of nonoccupational 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 nonoccupational 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 nonoccupational 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)
3. Section 24 of P.L.2019, c.37 (C.43:21-55.2) is amended to read as follows:
24. a. 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 the employee to employment 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] in the position held when the leave commenced or an equivalent position of like seniority, status, employment benefits, pay and other terms and conditions of employment, except that if, during period of leave, the employer experiences a layoff and the employee would have been laid off if the employee had not been on leave, the employee shall not be entitled to reinstatement, but only if the employer notifies the employee of the employee's right to file a claim for unemployment benefits after the leave period ends provided by paragraph (2) of subsection (c) of R.S.43:21-19.
b. Upon a violation of subsection a. of this section, an employee or former employee may, as an alternative to any action that the employee is permitted to take for the violation pursuant to the provisions of P.L.1948, c.110 (C.43:21-25 et al.), P.L.2008, c.17 (C.43:21-39.1 et al.), or the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.), institute a civil action in the Superior Court for relief[. All] in which 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) 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) an injunction to restrain the continued violation of any of the provisions of this section;
(3) 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;
(4) reinstatement of full fringe benefits and seniority rights;
(5) compensation for any lost wages, benefits and other remuneration; and
(6) payment of reasonable costs and attorney's fees.
(cf: P.L.2019, c.37, s.24).
4. This act shall take effect immediately, provided that:
a. in the case of any employer who becomes subject to the provisions of P.L.1989, c.261 (C.34:11B-1 et seq.) because of the provisions of paragraph (5) of subsection f. of section 3 of P.L.1989, c.261 (C.34:11B-3), the provisions of P.L.1989, c.261 (C.34:11B-1 et seq.) shall apply to the employer only with respect to periods of family leave which commence after the effective date of this act; and
b. in the case of any employer who becomes subject to the provisions of section 24 of P.L.2019, c.37 (C.43:21-55.2) because of the changes made in that section by P.L. , c. (C. )(now pending before the Legislature as this bill) the provisions of section 24 of P.L.2019, c.37 (C.43:21-55.2) shall apply to the employer only with respect to periods of disability for family temporary disability leave which commence after the effective date of this act.
STATEMENT
This bill extends to employees of employers with less than 30 employees the right to be reinstated to employment after taking paid or unpaid family leave, thus ensuring that all workers who pay for family leave insurance (FLI) will be able to able to return to work after taking FLI benefits.
The bill extends to employees, no matter how few employees their employer has, the current provision of section 24 of P.L.2019, c.37 (C.43:21-55.2) that an employee who takes FLI benefits to care for a family member may not be retaliated against by their employer refusing to reinstate them after the leave. Currently, an employer who employs less than 30 workers, and is thus exempt from the reinstatement requirements of the Family Leave Act (FLA), is also exempt from the reinstatement requirements of that section. By removing this exemption, the bill extends that section's reinstatement rights to recipients of FLI benefits even if their employers have less than 30 employees, in the same way that section currently provides that reinstatement protection for temporary disability insurance recipients no matter how few employees the employer has.
The bill also amends the FLA to make employers, regardless of how few employees they have, subject to that law's requirement to reinstate leave takers, thereby extending that right of reinstatement to employees of employers with less than 30 employees, whether or not the employees receive FLI benefits.
Finally, the bill provides that an employer is not penalized for failing to reinstate a leave taker if the employer has a layoff during the leave period and the employee would have been laid off if not on leave, but only if the employer notifies the employee of the employee's rights under the unemployment insurance (UI) law to claim UI benefits after the leave period ends.
The bill's provisions would apply only to periods of family leave which commence after the effective date of the bill.
