The last year brought several significant developments in New Jersey employment laws. In 2020, employers will navigate changes to among other laws, Family Leave, Temporary Disability Benefits, and Family Leave Insurance. In light of these changes, employers are strongly encouraged to review their disability and accommodation policies and ensure that they follow new guidelines for the "interactive process" that employers are required to participate in with potentially disabled employees.

NJ Family Leave Act

While already in effect as of June 30, 2019, some employers may still not be aware that the New Jersey Family Leave Act (NJFLA) expanded its coverage, requiring more employers to provide leave for employees to care for their family members. Now, all employers with at least 30 employees (previously 50 employees) must provide job-protected leave for qualifying employees to care for a family member or to bond with a new child. Qualifying employees have worked for their employer for at least 1 year and 1,000 hours in the last 12 months. The child bonding qualification now includes the placement of foster children and children born through a gestational carrier.

As with similar leaves, family leave may be taken either consecutively or intermittently. The NJFLA amendment shortened the advance notice requirement to use intermittent leave, from 30 days to 15 days. For consecutive leave, to care for a newborn or a child placed for foster care or adoption, the notice period remains at 30 days.

NJ Security and Financial Empowerment Act

The New Jersey Security and Financial Empowerment Act (SAFE Act), originally enacted in 2013 to provide leave for employees who are victims of domestic and sexual assault, or have a family member who is a victim, has been expanded. An employer's ability to require employees to use accrued, unused vacation, sick, or PTO time during unpaid leaves has been eliminated. Further, eligible employees taking SAFE Act leave are now eligible to collect temporary family leave insurance benefits from the state, similar to those employees who take leave under the NJFLA. However, the SAFE Act applies to employers who employ at least 25 employees.

NJ Family Leave Insurance

New Jersey Family Leave Insurance (NJFLI) provides wage replacement benefits from the state to employees on family leave. Effective immediately, employers are prohibited from requiring employees to use any PTO in lieu of NJFLI benefits (the law previously allowed employers to require employees to use up to two weeks of PTO), but still allows employees to elect to use PTO in lieu of NJFLI benefits.

Effective July 1, 2020, paid leave benefits will double from 6 weeks to 12 weeks for consecutive leave within a 12-month period. For intermittent leave, state insurance benefits will increase from 42 to 56 days in a 12-month period. The cap on the weekly benefit amount has been raised to 85% (up from 66.6%) with a weekly maximum benefit of $859.00 per week in 2020.

Additionally, the law now includes a comprehensive anti-retaliation provision prohibiting employers from terminating, harassing, or engaging in any other conduct that interferes with an employee's employment because the employee requested or took leave. Employers may not refuse to restore an employee to the same or like position after a period of leave. Finally, the previous seven-day waiting period for NJFLI benefits has been eliminated.

NJ Medical Marijuana Act

In addition to expanding family leave laws, New Jersey enacted the Compassionate Use Medical Cannabis Act (CUMCA), which prohibits employers from taking "adverse actions" against employees if the adverse action is "based solely on the employee's status" as a medical marijuana patient. An adverse employment action is a materially adverse change in working conditions that is more disruptive than a mere inconvenience or an alteration of job responsibilities, and, generally includes termination, denial of a promotion, demotion, suspension, change of work hours, and denial of job benefits. However, the law does not require an employer to allow the use of medical marijuana in the workplace. Specifically, CUMCA does not restrict an employer's ability to prohibit or take adverse employment action for the possession or use of intoxicating substances during work hours or on workplace premises outside of work hours. The expanded law also permits employers to take adverse action against an employee where accommodation of medical marijuana use would "violate federal law or result in the loss of a federal contract or federal funding."

The New Jersey Appellate Division also opened the door last year for medical marijuana claims under the New Jersey Law Against Discrimination (LAD). In Wild v. Carriage Funeral Holdings, 458 N.J. Super. 416 (App. Div. 2019), the Appellate Division held that employees may advance state disability discrimination claims for failing to accommodate their off-duty use of medical marijuana. New Jersey is now one of only several states in which courts have recognized a legal obligation to accommodate an employee's off-duty medical marijuana use.

What Should NJ Employers Do?

In light of these key changes to New Jersey's leave and disability laws and the expansion of CUMCA, it is crucial for employers to understand the overlap with disability discrimination laws. When someone has to care for a family member under the NJFLA, or is treating a disability with cannabis, he, she, or they may also require an accommodation from their employer. In order to determine if a reasonable accommodation can be made, the employee and employer must engage in what is known as the "interactive process." There are no "magic words" that an employee must speak in order to initiate the interactive process, but once an employee notifies the employer of a leave, medical condition or disability that requires a change at work, the interactive process is triggered.

During the interactive process, the employer should also give the employee an opportunity to discuss his, her, or their abilities, restrictions and ideas for an accommodation, and should also meet with the employee's supervisor to discuss the reasonable accommodation and the feasibility of implementing the accommodation in light of its impact on the underlying job.

The employer should request current medical documentation of the employee's physical and/or cognitive functional limitations. During the interactive process, employers should not inquire about the nature, extent, and severity of the mental or physical disability or medical condition of the employee. Rather, the inquiry should be limited to the employee's ability to perform job-related functions. An employer should not contact the employee's health care provider directly. If clarification is needed, ask the employee to contact their health care provider.

The employer should discuss with the employee possible options for an effective job accommodation. An accommodation is not reasonable and should not be implemented if it poses an undue hardship for the employer. An employer cannot make a generalized conclusion that the accommodation would pose an undue hardship. An undue hardship must instead be based on a case-by-case assessment of the circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. When making an undue hardship determination, employers should consider several factors, including the nature and cost of the accommodation needed; the employer's overall financial resources; and the impact of the accommodation on the operation of the employer's location where the employee works.

Documentation is a very important step of the interactive process. Employers should maintain a written record of their decisions, actions, and results. All documentation should be kept in a secured file and separate from the employee's personnel records.

Employers are strongly encouraged to review their current leave and disability policies to ensure they are compliant with state law. A good practice for employers is to conduct a regular in-depth self-audit of all employee policies not only to ensure compliance with current laws but to effectuate changes to their business operations when necessary.

 

Gregory S. Hyman is co-managing partner of the Philadelphia office of Kaufman Dolowich & Voluck, where he defends public and private sector employers before state and federal courts, administrative agencies and arbitration tribunals. Katharine W. Fogarty is a civil litigator at the firm, where she concentrates her practice in employment law, including discrimination, harassment, wrongful discharge, retaliation and contract disputes.