Key takeaways:

• Number of employees able to take job protected leave under certain circumstances increases with new employment law obligations in New Jersey
• Employee entitled cash benefits received during leave increases with new employment law obligations in New Jersey
• Pre-employment drug testing for marijuana banned in amended New York City legislation

The barrage of new employment law obligations for employers who do business in New Jersey and New York City continues into 2019 and 2020. Specifically, recent changes to the New Jersey Family Leave Act (FLA), Family Leave Insurance (FLI) law, and Security and Financial Empowerment Act (SAFE Act) increases both the number of employees who will be able to take job-protected leave under certain circumstances, and the monetary benefit they will be entitled to receive during that leave. Additionally, New York City continues to earn its reputation as one of the most employee-friendly locales in the United States by taking on pre-employment marijuana testing.

Expanded Coverage under the FLA

Effective June 30, 2019, the FLA will expand its reach to apply to New Jersey employers with 30 or more employees (including those who work both inside and outside the state). This is a significant change as the FLA has always been consistent with the federal Family Medical Leave Act in applying to employers with 50 or more employees.

Additionally, effective immediately, covered employees must provide their employer with the following notice before taking leave under the FLA:

• At least 15 days’ notice for intermittent leave (which may now be taken for any reason under the FLA without employer approval)
• At least 50 days’ notice for consecutive leave to care for a newborn or a child placed for foster care or adoption
• “In a reasonable and practicable manner” for consecutive leave to care for a family member with a serious health condition
• As much notice as possible in emergent circumstances

The law was also amended to clarify that in addition to using FLA to care for or bond with one’s newborn or newly adopted child, and to care for one’s family member who has a “serious health condition,” covered employees may also take FLA to care for or bond with one’s newborn conceived through gestational carrier agreement, and to care for or bond with one’s child placed in foster care.

Finally, the definition of family member was expanded to include 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 with a close association to the employee equivalent to a family relationship.

Increased FLI Benefits

FLI currently provides New Jersey employees with cash benefits, funded through employee payroll contributions, for up to six weeks at a rate of two-thirds their pay, up to a maximum of $650. The FLI was amended to provide FLI benefits not only when employees take time off to bond with a child within two months of the child’s birth or placement by adoption or foster care, or to care for a family member with a serious health condition, but also whenever the employee takes leave under the NJ SAFE Act (which provides certain eligible employees with up to 20 days of unpaid leave in a 12-month period to address circumstances resulting from domestic violence or a sexually violent offense experienced by the employee or his/her family member).

The FLI was further amended to clarify that:

• Employees may elect (but cannot be forced) to use accrued unused paid time off in lieu of FLI benefits, and that the use of paid time off benefits will no longer reduce the amount of FLI benefits available to the employee
• Employees must provide 15 days of advance notice when requesting intermittent FLI benefits during intermittent bonding leave (capped at 42 days), and 30 days’ advance notice for FLI benefits during continuous bonding leave
• Employees are no longer subject to a seven-day waiting period before collecting FLI benefits
• Beginning July 1, 2020, eligible employees will be allowed up to 12 weeks of continuous FLI benefits at 85 percent of the employee’s average weekly wage, up to a maximum weekly benefit rate of $860
  • The intermittent leave allotment will also increase to 56 days

Additional changes were made to the requirements for employers who provide FLI and temporary disability benefits through a private plan, as well as a new anti-retaliation provision accompanied by a private right of action.

SAFE Act Expanded

As noted above, beginning July 1, 2020, employees taking leave under the SAFE Act will be eligible for FLI benefits. The definitions of key terms under the SAFE Act, including a family member, child, and parent, were also amended to mirror the definitions under the FLA. Finally, as with FLI benefits, employees may elect (but cannot be forced) to use accrued unused paid time off for SAFE Act purposes.

The NJ Department of Labor and Workforce Development has not yet issued an updated SAFE Act poster but is expected to do so in the near future.

New York City Bans Pre-Employment Testing for Marijuana

New York City once again made history by passing legislation amending the New York City Human Rights Law that effectively bans pre-employment drug testing for marijuana, outside of certain limited circumstances.

The amendment, which takes effect in May 2020, provides exceptions for:

• Construction workers
• Police officers
• Commercial drivers
• Teachers
• Teachers’ aides
• Daycare center employees
• Jobs that require the supervision or care of patients in medical nursing home or group care facility
• Jobs that have the potential to significantly impact the health or safety of employees or members of the public

Employers may also continue to conduct pre-employment marijuana testing when required by U.S. Department of Transportation regulations, federal contracts, federal or state laws requiring pre-employment drug testing of employees for safety or security purposes, or collective bargaining agreement.

Notably, the new law does not prohibit drug-testing current employees, or permit employees going to work under the influence of marijuana.

If you have any questions about how these changes might affect your workplace and policies, please contact:

• Caroline Berdzik
• Peter Woo
• Kristin Klein Wheaton
• Or another member of the Employment and Labor Practice Group