By Louis P. Bucceri, Esq.
The problem of supporting yourself and your family when a leave is needed to care for a family member is all too common. Statutory rights to take a leave due to a serious family illness, or for child-rearing, exist based on the federal Family and Medical Leave Act (FMLA) and/or the New Jersey State Family Leave Act (NJFLA). However, those statutes do not provide any right to be paid for time spent on family leave. Some local association contracts provide for paid family-leave days, but they are usually of limited duration.
Fortunately, a different New Jersey statute can supply income to those on family leave. New Jersey Family Leave Insurance (NJFLI)—also called Temporary Family Disability Leave Benefits—applies to all employees covered under the New Jersey Unemployment Compensation Law. It does not give you the right to take a leave. Instead it provides a weekly payment, similar to unemployment benefits, while you are on a family leave. The payment comes from the state and is funded through a mandatory payroll deduction similar to the deductions for unemployment benefits.
You should apply for these payments while you are on an NJFLA leave. The online application to the state for payment of NJFLI must be filed no later than 30 days after the leave starts. The application can be found at bit.ly/njfli. If you take an NJFLA leave without claiming the payment, it may be denied at a later time. Reasonable notice must be given to your employer for a leave for family illness (only leaves for serious health conditions are covered) or that is due to domestic or sexual violence. Notice to an employer regarding a continuous child-rearing leave that is due to the birth or placement of an adopted or foster child must be at least 30 days in advance, or a loss of benefits will be imposed. If you are seeking an intermittent leave under any of these provisions, 15 days’ notice must be given to the employer.
New Jersey Family Leave Insurance (NJFLI) provides a weekly payment, similar to unemployment benefits, while you are on a family leave.
The amount of payment to which you are entitled is based on a percentage of your salary up to a state maximum. The maximum in 2018 was $681 per week. Currently payments can be received for up to six weeks (or 42 days if the leave is intermittent) in a 12-month period. Employees whose payments start after July 1, 2020, will be able to receive benefits for up to 12 weeks (or 56 intermittent days). The NJFLI payments must all be collected within a year of the birth or placement of a child if the leave is for that purpose.
Payment for up to 20 days is available when an employee or their family member has been a victim of domestic abuse or sexual violence. An employee can choose to use accumulated sick leave, or other contractual paid leave benefits, in place of all or part of NJFLI, if the absence is due to domestic abuse or sexual violence.
You cannot receive NJFLI payments while you are being paid by your employer for any reason, or while collecting unemployment benefits. You will be disqualified if you take a second job while receiving the payments, although you can keep a second job if you had it before the payments started, provided that you do not increase your work in that job during that time.
Claims for NJFLI payments starting prior to July 1, 2019, are subject to a one-week waiting period during which no benefits are paid. If benefits are collected for over the following three weeks, the benefits for the first week will be paid retroactively. Benefits that begin after July 1, 2019, will be paid with no waiting period. The payments do not count as salary for pension. They are excluded from state, but not federal, income taxes. Health insurance is not continued unless you have the right to continue it by contract or through an FMLA/NJFLA leave. FLIA payments do not result in any right to re-employment.
Another statute, the state’s Earned Sick Leave Law, allows the use of sick-leave pay earned by the employees it covers for absences due to even minor family illness. Unfortunately, the Earned Sick Leave Law does not apply to anyone who is regularly employed by a school district. Aside from victims of assault, school employees cannot use sick days for family leave, unless a contract, past practice or policy permits it. Always consult your NJEA UniServ office before seeking a family leave or family leave insurance payments.
Louis Bucceri, Esq., is a partner at Bucceri Pincus. He is one of NJEA’s network attorneys.