The Paid Family Leave Act will take effect in New Jersey in January, but many employers do not yet really understand the implications of the law and how it should be implemented, says John Sarno, president of the Employers Association of New Jersey.
“Mandatory leave laws guaranteeing job protection and other benefits have grown increasingly complex to administer, and the legal liability for getting it wrong is enormous,” says Sarno.
To help employers understand this new act, which both “overlaps and conflicts” with several other state and federal laws regarding employee leave, the EANJ will present, “Putting the Puzzle Pieces Together: Administering FMLA, NJ FLA, Paid Family Leave, ADA & Title VII,” on Tuesday, October 28, at 9 a.m. at Monmouth University. Cost: $135 per person. Register online at www.eanj.org. The program will also be held again on Thursday, November 13, at Bergen Community College, Thursday, November 20, at Raritan Valley Community College, and Tuesday, December 2, at the County College of Morris.
Sarno has combined his background in both psychology and the law in his work with the employers’ association, he says. He received a bachelor’s degree from Ramapo College in 1977 and a master’s in counseling from Seton Hall in 1980. He worked for several years as a counselor for clients with disabilities, including work with disabled students at Ramapo, before returning to law school and receiving his J.D. degree from Seton Hall in 1988.
Sarno’s background in disability law and medical leave issues is complemented by his years as an attorney specializing in business and corporate law, and giving him an excellent background for interpreting the complexities of the new law.
One of the most important things for employers to understand about paid family leave insurance is that the law cannot be applied in a vacuum. Instead, it works in conjunction with all other family leave laws, including the federal Family Medical Leave Act (FMLA), the New Jersey Family Leave Law, the Americans with Disabilities Act, and Title VII.
The law, says Sarno, “is a legal minefield for any employer with 50 or more employees.”
Insurance law vs. leave law. The family leave insurance law enables eligible employees to collect up to six weeks of insurance if they must take off from work to care for a newborn, newly adopted child, or an ill family member. While it is usually referred to as the “Paid Family Leave Law,” the new law is actually an “insurance law, not a leave law,” says Sarno.
In other words, it is not a guarantee of time off or job re-instatement. Instead, the law, which is 100 percent worker-funded, allows eligible employees to receive two thirds of their normal paycheck for up to six weeks of leave. Contributions will be taken from eligible employees’ pay beginning on January 1. Paid leave, however, will not begin until July 1, which will give sufficient time for the state to accrue money to pay any claims.
Terminating employees. “The greatest confusion regarding the new law is whether an employer can terminate an employee who is out of work and collecting family leave insurance,” says Sarno. Family leave insurance law does not require employers to grant a leave of absence or to keep a job open with a right to guaranteed reinstatement, he explains. However, because the law must be seen in context with other related laws, it also does not mean that an employer can fire someone because they use family leave insurance.
For example, the federal family leave law grants eligible employees 12 weeks of leave with guaranteed reinstatement. Under that law, an employee could take 12 weeks of leave to care for a newborn baby. She could also receive two thirds of her salary for six of those weeks under the New Jersey paid family leave insurance law.
However, even during the six weeks in which the person is receiving leave insurance payments the employer can still not terminate the employee, explains Sarno, because she is still simultaneously covered under the federal law.
The same rule applies to other family leave laws, also. For instance, the Americans with Disabilities Act states that an employer cannot discriminate against a person who “associates” with people with disabilities. This can, according to Sarno, be interpreted as a caregiver for a disabled person. Therefore, if an employee is receiving payments under the Paid Family Leave Insurance Act, he cannot be terminated while caring for a disabled relative, because he is covered by the American with Disabilities Act.
The law also must be seen in context with Title VII of the Civil Rights Act of 1964, which “prevents sex discrimination and gender stereotyping and may require, under certain circumstances, the granting of leaves because of pregnancy and related medical reasons,” he adds.
The bottom line for employers regarding any employee who is taking leave or using the paid family leave insurance is that it is very difficult to terminate an employee on leave. “A careful evaluation should still be made before terminating an employee receiving FLI,” Sarno says. “Small employer immunity may not apply and other laws could be violated.”
Who is covered? It sounds straightforward: employers with 50 or more employees are covered by the Paid Family Insurance law. But the reality, once again, is more complex. FMLA covers “employers who employ 50 or more employees within a 75-mile radius of the eligible employer,” while the New Jersey leave law “governs employers with 50 or more employees, regardless of their location,” he says.
In other words, if an employer has two employees located in New Jersey, with 48 other employees located in other states, the New Jersey employees are still eligible for Paid Family Leave under the New Jersey law, even though it would not be eligible under federal law.
Title VII and the Americans with Disabilities Act applies to employers with 15 or more employees and that engage in interstate commerce. The NJ Law Against Discrimination requires employers to provide reasonable accommodations to employees with disabilities, which may include granting time off for reasons relating to a disability, and applies to all New Jersey employers, regardless of size.
The most important thing for employers to understand, both about the new Paid Family Leave Insurance, as well as other related laws, is “an employer must look at the whole picture in order for it to make sense,” says Sarno. “The demographic reality” is that most employees are covered by one or another of these laws; 50 percent of the workforce is women, while 60 percent of those women are of child bearing age. There are 5.6 million people with disabilities in the United States, and with people living longer, more and more people are caring for an elderly relative.
In other words, “the law is catching up with the realities of today’s society,” he says. For employers to be less vulnerable to lawsuits, they must keep abreast of the changing laws and regulations so that they have the knowledge to make the right decisions regarding their employees.