Law Summary New Jersey Family Leave Insurance Benefits (FLI)

Posted 6/19/2009

The following article is posted with permission of the Employers Association of New Jersey (EANJ), a nonprofit trade association dedicated to improving employer-employee relations and facilitating the exchange of information among employers.

The Family Leave Insurance law (FLI) enables eligible employees to collect up to six-weeks of state paid monetary benefits when out of work to care for a newborn, newly adopted child, or an ill family member. This insurance law is an extension of the State Temporary Disability Benefits Program and will be administered through the State of NJ. However, employers have the option of establishing either an insured or a self-insured private plan with benefits and terms at least as favorable as the state plan. Private plans must receive advance approval by the state.

Definitions
Reasons for Leave
Maximum Benefits
Use of Paid Time Off
Notice Required from the Employer
Notice Required from the Claimant to the Employer
Intermittent Leave
Medical Examinations
Appeals
Tax Rates

Definitions
As an extension of the Temporary Disability Benefits (TDB) law, eligibility and benefits calculations are the same. Additional definitions specific to FLI include:

  1. Bond or Bonding - means to develop a psychological and emotional attachment between a child and his/her primary caregiver(s). The development of this attachment requires being in one another's presence.
  2. Family member - means child, spouse, domestic partner, civil union partner or parent of a covered individual.

    A child means a biological, adopted, or foster child, stepchild or legal ward of a covered individual, or child of a domestic or civil union partner. Further, a child is defined as being less than 19 years of age or 19 years of age or older but incapable of self-care because of mental or physical impairment.

    "Parent" means a biological parent, foster parent, adoptive parent, a legal guardian of the eligible individual when he/she was a child, or a step parent which includes the person to whom the eligible individual's biological parent is either currently married or with who the eligible individual's biological parent is currently sharing a civil union.

  3. Incapable of self care - solely for the purpose of defining the term "child," means that the individual requires active assistance or supervision to provide daily self-care in three or more "activities of daily living" or "instrumental activities of daily living. Activities of daily living include adaptive activities, such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.
  4. Physical or mental impairment - solely for the purpose of defining the term "child" means a) any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin and endocrine; or b) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
  5. Care - means, but is not limited to, physical care, emotional support, visitation, assistance in treatment, transportation, arranging for a change in care, assistance with essential daily living matters and personal attendant services.
  6. Serious Health Condition - in general, defined as in the Family Medical Leave Act.

Reasons for Leave
An eligible individual can collect FLI benefits to bond with a newborn, newly adopted child or to care for an ill family member. Bonding with a child must occur within the first 12 months of the child's birth or placement for adoption. Caring for a family member with a serious health condition must be supported by a certification provided by a health care provider of the ill family member.

Maximum Benefits
The maximum total benefits payable to any eligible individual for any period of family leave commencing on or after July 1, 2009, shall be six times the individual's weekly benefit amount or 1/3 of his total wages in his base year, which ever is less. In no cases shall more than six weeks of benefits be paid in any 12 month period, beginning with the filing of the initial claim. Effective July 1, 2009, the maximum weekly benefit rate for state plan Family Leave Insurance benefits is $546 per week.

Use of Paid Time Off
An employer may require the claimant, during a period of family leave, to use up to two weeks of paid sick leave, paid vacation time or other leave at full pay. In such instances, the employer may request of the Division that the claimant's maximum FLI benefit entitlement during the 12-month period be reduced by the number of days of leave at full pay the employer is requiring the employee to use, up to two weeks. If the employer does not make such a request to the Division, the employee will retain the right to utilize the full 6-weeks of benefits in a 12-month period. An employer may permit the claimant to use in excess of two weeks of such paid time off. When the employer permits the use of such time at full pay, the claimant's maximum FLI benefits within the 12 month period shall not be reduced by the number of full days pay permitted by the employer. However, the claimant will not be eligible to collect FLI benefits while receiving full pay from the employer (non-duplication of benefits).

Notice Required from the Employer
Employers shall post at each worksite, in a place or places accessible to all employees of the worksite, a printed notification of covered individuals' rights relative to receipt of FLI benefits. Additionally, employers shall provide each employee with a written copy of such notification in each of the following circumstances 1) No later then December 15, 2008, 2) At the time of the employee's hiring, 3) Whenever the employee provides notice to the employer of the potential need for a leave and 4) at any time, upon the first request of the employee. Such notice may be distributed in electronic form. Employers will also be required to respond to correspondence from the Division regarding employee's claims for benefits.

Notice Required from the Claimant to the Employer
With regard to a claim for FLI to bond with a child, a claimant shall provide the employer with no less than 30 days notice. Failure to provide the employer with 30 days notice shall result in a reduction of the claimant's maximum FLI benefits entitlement by two weeks in a 12 month period, unless the timing of the leave is unforeseeable.

With regard to a claim to care in a continuous manner for a family member with a serious health condition, the claimant shall provide to the employer prior notice of the family leave in a reasonable and practicable manner, unless an emergency or other unforeseen circumstance precludes prior notice. When a claimant seeks to take intermittent leave, they must provide the employer with 15 days notice, unless an emergency or other unforeseen circumstance precludes such notice.

Intermittent Leave
Claims may be filed for six consecutive weeks, for intermittent weeks or for 42 intermittent days during a 12 month period, beginning with the first date of the claim.

Intermittent leave is not available for the purposes of bonding with a child unless the employer agrees to permit the use of leave in such a manner. In such circumstances the claimant will be permitted to utilize FLI benefits in non-consecutive periods of seven days or more.

A claimant will be eligible for intermittent leave to care for a family member with a serious health condition provided 1) it is medically necessary to take leave in such a manner, 2) the total period within which the intermittent family leave is to be taken does not exceed 12 months, 3) the claimant makes a reasonable effort to schedule the leave so as to not unduly disrupt the employer's operations and 4) when possible, prior to the commencement of the leave, the claimant provides the employer with a regular schedule of the day or days of the week on which the intermittent family leave will be taken.

Medical Examinations
An employer may request an independent medical examination of a claimant's family member to verity the need for FLI benefits in the same manner as under New Jersey Temporary Disability Benefits law, although the decision as to whether to direct an independent medical examination lies with the state or private plan.

Appeals
An employer may file an appeal of a determination to pay FLI benefits within seven (7) calendar days after the delivery of a determination, or within ten (10) calendar days after such determination was mailed.

Tax Rates
This program is financed by employee contributions. Beginning January 1, 2009 each worker shall contribute an amount equal to .09% of wages for calendar year 2009. This amount will increase to .12% of wages for calendar year 2010 and subsequent years.

For More Information:

Employers Association of New Jersey - www.eanj.org

New Jersey Department of Labor and Workforce Development - http://lwd.dol.state.nj.us/labor/fli/fliindex.html

 

This document is for informational purposes only and does not constitute legal advice or a legal opinion. For answers to specific questions concerning your situation, you should consult a knowledgeable attorney who can advise you regarding your particular circumstances.