NJ FMLA - What It Means to You

By Mark Herschlag

 Governor Phil Murphy has signed several new laws that started going into effect in 2020 and these laws can have an impact on business owners, both small and large, expecting mothers, parents, caregivers, and employees in a variety of ways.

Governor Phil Murphy signed into law an expansion to the states paid family leave program. In 2008, New Jersey enacted a paid family leave program, and now the law significantly expands the program to provide employees with additional job protections for missing work due to caring for a newborn child, or a sick loved individual. 

"No one should ever be forced to choose between caring for a family member and earning a paycheck. By providing the most expansive paid family leave time and benefits in the nation, we are ensuring that New Jerseyans no longer have to face such a decision and that working families are treated with the respect and dignity they deserve. This comprehensive paid family leave program, coupled with the newly passed earned sick leave and minimum wage increase, are fundamental elements in building a stronger and fairer New Jersey for all working families,” said Governor Murphy.

The bill, A3975, changed New Jersey’s paid family leave program in many ways for both the employers and employees, include:

· Expansion of individuals eligible to take paid family leave: expands paid family leave to include blood relatives and any other individuals who can be shown to have the equivalent of a family relationship.

· Reduced-schedule leave: someone taking reduced schedule leave under family leave act can now receive benefits for up to 12 consecutive months instead of 24 weeks.

· Individuals who take family leave act to bond with a newborn can take leave intermittently and is no longer only available if the employer agrees.

· Employees taking paid family leave cannot be required to use paid time off instead of family leave benefits. If an employee chooses to use PTO benefits, it will not reduce their total family leave insurance benefits available.  

· Starting July 1, 2020, employees will be eligible for an increase of paid family leave benefits from six weeks to twelve weeks, and maximum benefits increase to 85% of the individual's average weekly wage up to the applicable cap. Also, employees can take 56 days of intermittent leave instead of 42 days. 

· The bill allows family temporary disability leave to be taken for medical attention, counseling, or legal assistance/proceedings that are results of domestic violence or sexual violence. One can take family leave if they were the victim or if they need to care for a family member who was such a victim. 

· Employers are prohibited from discharging, harassing, discriminating, or retaliating against an employee for using or requesting family leave insurance benefits. The law also eliminates the 7-day waiting period for family leave insurance benefits.

 

What happens to employer-sponsored health insurance premiums?

Employers are required to continue an employee’s insurance coverage under the company’s group health plan during FMLA leave. Employees must continue to pay their share of the premium; if any, unless an employee is using paid time off during FMLA leave, there will be no paycheck for the employer to withhold from. So, employers should notify their employees how to pay their portion of the premium. Some employers ask employees to write a check for their share and send it in on the regular payday or collect payment before or after leave.

 

What if the employee doesn’t return to work?

If an employee chooses not to return to work after their FMLA leave is over, the company may have the right to seek reimbursement for its share of the employee's medical insurance during FMLA leave.

However, if, for example, an employee was too ill to return to work or had to continue providing care for a family member, or they were otherwise unable to return to work for reasons beyond your control, the employer can’t ask for reimbursement. 

Also, employers should automatically provide Cobra insurance to their employee since they are eligible for it.

 

 An employer makes $1.3 million FMLA mistakes by firing a worker who went on a trip while on FMLA. Below is the case from Choate Firm in Massachusetts:

“The case is DaPrato v. Mass. Water Res. Auth., No. SJC-12651, 2019 Mass. LEXIS 299 (June 5, 2019).

The Massachusetts Supreme Judicial Court (“SJC”) recently affirmed a jury’s finding that an employee was wrongfully terminated after he took a vacation during his Family and Medical Leave Act (“FMLA”) leave.

WHAT YOU NEED TO KNOW:

Richard DaPrato, former information technology manager for the Massachusetts Water Resources Authority (“MWRA”), took FMLA leave following a foot surgery. He told the authority that he would be taking a doctor-approved trip to Mexico during a portion of his recovery. Upon returning to work, the authority terminated DaPrato, saying he violated the “salary continuation plan” by traveling to Mexico while on FMLA leave.

At trial, DaPrato claimed the MWRA retaliated against him for exercising his right to take medical leave under the FMLA. The jury found the MWRA liable for retaliatory termination and awarded DaPrato almost $2 million, which included $715,385 in punitive damages and $616,886 in compensatory damages.

The MWRA appealed the damages awards, but the SJC found that the damages awards were reasonable.

The court stated, “DaPrato took FMLA leave to allow his foot to recover fully from surgery. Such recovery could take place in a warm climate as well as in a New England winter.” However, the court also warned, “An employee recovering from a leg injury . . . may not climb Machu Picchu without abusing the FMLA process. Careful consideration of the reasons for the medical leave and the activities undertaken, including the timeline for rehabilitation and recovery, are required to determine whether the FMLA leave has been abused.” 

Regarding the punitive damages award, the court noted, “The deterrence purpose of punitive damages justifies the sum awarded here, particularly because the MWRA is a sophisticated and solvent public employer expected to know and comply with the spirit and letter of the FMLA law.”

WHAT YOU NEED TO DO:

This decision serves as a reminder to exercise caution when administering FMLA. Determining whether an employee has abused the FMLA process depends on the specific facts of each individual case, and employers may expose themselves to liability and damages for an incorrect determination. Therefore, before taking any action against an employee on FMLA leave, employers should strongly consider consulting counsel.”

 

NJ Transit Benefit

On March 1, 2019, Governor Murphy signed S1567 into law requiring employers with at least 20 employees to offer a pre-tax transportation fringe benefit. Employees can decide to set aside up to $270 a month for transit passes, which can be purchased through vouchers, fare cards, smart cards, debit cards, or direct payments to a transit operator. Employers can also choose to deduct up to $270 a month for parking, but it’s not required. The commuting benefit is not offered to employees covered by a collective bargaining contract. 

Employers must offer this benefit to comply with IRS regulations. Employers that fail to comply with the law are subject to a penalty of between $100 to $250 for the first violation. However, before a penalty is imposed, employers will have 90 days from the date of the violation to offer the pre-tax transportation fringe benefit program. 

Mark Herschlag is the founder and CEO of Cosmo Insurance Agency, which is based in Ocean County. Cosmo Insurance Agency offers personalized solutions for individuals and businesses looking to obtain health, life, dental, long term care or disability insurance.   

For more information or for a free, no-obligation quote, please call (201) 817-1388 or email info@cosmoins.com.

Cosmo Insurance Agency is an independent insurance agency serving surrounding communities in New Jersey. Cosmo keeps its promise to assure an efficient and creative approach to the services we offer. Each of our clients experience a personalized and long-term relationship with us. Our New Jersey based team of health brokers guides our clients in helping them choose the most cost-effective options. By incorporating the latest in technology-based tools and laws on healthcare, employee benefits, life insurance and finance, we keep our clients up-to-date with the plans that encompass all of their needs, whether it is individual or group insurance.

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Posted 3:00 PM

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