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NJ Approves New Leave Law: A Game-Changer for Employee Leave Rights and Employer Responsibilities

On January 19, 2026, former Governor Phil Murphy signed into law a bill that significantly reshapes employee leave rights and employer obligations in New Jersey. The legislation expands leave coverage by lowering the minimum number of employees an organization must have in order to be subject to the law and by reducing the length of time an employee must work for an employer to become eligible for leave. The purpose of the law is to ensure that newer employees and employees of small organizations receive the protection of New Jersey’s leave law.

Previously, New Jersey’s Family Leave Act (“NJFLA”) provided employees working at organizations with 30 or more employees up to 12 weeks of leave to bond with a new child, care for a sick family member, or for other qualifying reasons, with guaranteed job reinstatement after the leave. To qualify, employees were required to have worked for their employer for at least 12 months and must have worked a minimum of 1,000 hours in the previous year.

The new law significantly eases eligibility requirements. Employees now qualify for leave and job protection after just three months of employment with their employer and only 250 hours worked in the past year. Furthermore, the law reduces the threshold for employers, meaning organizations with as few as 15 employees (down from the current 30) are now subject to these provisions. For public entities, employees are already eligible for NJFLA leave regardless of employer size, and the only change is the shortened eligibility period of three months of employment and 250 hours worked in the past year.

It is important to note that the law does not alter the fact that employees who take NJFLA leave are eligible to receive up to 85% of their average weekly wages, subject to the maximum weekly benefit cap, while on leave through the New Jersey Family Leave Insurance (“NJ-FLI”) program.

For employers, this legislation represents a major shift. With fewer eligibility requirements, a wider range of employees are now able to take leave with guarantees of job protection, creating new compliance obligations. Employers will need to update policies and procedures to ensure that they comply with these expanded requirements and properly manage leave requests.   

While a limited number of states already provide job protection for employees outside the scope of the Federal Family and Medical Leave Act (FMLA), New Jersey’s approach positions it as a leader in this area.

Recent Legislation Impacting New Jersey Workers’ Compensation

Two bills have already been signed this year by Governor Phil Murphy, which will have some impact on workers’ compensation. The first, S-3772, deals with board and lodging provided by employers.  Under N.J.S.A. 34:15-37, the law provided until 2026 that board and lodging “when furnished by the employer as part of the wages shall be included and valued at $25.00 per week.”   This legislation was passed in 1945, but the $25 amount has not been amended in 80 years.

Under the new amendment to N.J.S.A. 34:15-37 signed by Governor Murphy, board and lodging when provided by employers as part of wages shall be at market value at the time of injury.  One exception is noted in the amendment. “If, however, the claimant continues to receive board or lodging during a period of total temporary disability, (sic), the value of the board or lodging shall not be included in the calculation of the workers’ compensation rate for purposes of temporary total disability.”

Cases are rare where an employer provides board and lodging as part of wages or a contract of hire. When this does occur, the use of market value rather than $25 per week will amount to a significant increase in the average weekly wage of the employee.  This is the intention behind the legislation.

Another bill relevant to workers’ compensation practitioners was signed by Governor Murphy on January 14, 2026, namely S-2373.  This legislation provides employment protections for paid first responders who have been diagnosed with post-traumatic stress disorder (PTSD).  This bill is not workers’ compensation legislation because Judges of Compensation do not have the power to order reinstatement of employees to work.  Where workers’ compensation law comes into play, however, is the requirement that the diagnosis of PTSD be based on work exposure or work injury.  The law provides:

An employer shall not discharge, harass, or otherwise discriminate or retaliate or threaten to discharge, harass, or otherwise discriminate or retaliate against an employee with respect to the compensation, terms, conditions, duties or privileges of employment on the basis that the employee took or requested any leave related to a qualifying diagnosis of post-traumatic stress disorder.

The law further provides that following a period of leave for PTSD, “an employer shall reinstate an employee whose fitness to return to work has been documented by a mental health professional to the position and duties held by the employee prior to the leave.”

How does the employee satisfy the requirement that the PTSD condition arose from work?  The law permits two methods.  First, the diagnosis may be “memorialized in an order of a judge of the Division of Workers’ Compensation concerning the employer and employee and the traumatic injury or exposure which makes up the basis for the claim, upon motion or after a plenary trial or by stipulation of the employer or employee.”

The second way, and probably more common way, will occur after “an examination of the employee by a mental health professional who reports the diagnosis of post-traumatic stress disorder…”  The mental health practitioner must give an opinion that this diagnosis arose from the employee witnessing or experiencing a traumatic event arising from work.  Alternatively, the mental health practitioner may determine that the diagnosis is “due to vicarious trauma experienced by the employee as a result of the performance of regular or assigned duties of the employee.”  The term “vicarious trauma” is not defined in the legislation but is commonly used to mean a situation where the psychological impact stems from learning or hearing about traumatic experiences of others.

This new law does not abrogate the right of a public employer to discharge any employee who it determines to be unfit for duty. However, when a mental health practitioner opines that a first responder can return to work following a leave related to PTSD, this law provides the first responder with job protection.

November 3, 2025 Designated ‘One Health Day’ in New Jersey by Governor Phil Murphy

New Jersey led the nation as the first state to pass legislation creating a One Health initiative. P.L. 2021, Chapter 117 (adopted and effective on June 24, 2021), which establishes the “New Jersey One Health Task Force”.

New Jersey Governor Phil Murphy proclaimed November 3, 2025 as “One Health Day” in the State of New Jersey. “One Health Day” is an awareness campaign recognizing the interconnectedness of human, animal, plant, and environmental health, and promotes collaboration to address these interdisciplinary issues.

While “One Heath” is not a new concept, the legislation states, “it has become increasingly important in recent years as many factors have changed interactions between people, animals and the environment, leading to the emergence or reemergence of many diseases”.

This legislation declares that it is “in the public interest of the State of New Jersey to establish a permanent New Jersey One Health Task Force to promote health and wellness of New Jersey residents, animals, including pets, livestock, and wildlife and natural resources by encouraging the collaborative efforts of experts and leveraging knowledge and resources effectively.”

The New Jersey One Health Task Force is charged with the task to “develop a strategic plan to promote inter-disciplinary communication and collaboration between physicians, veterinarians, and other scientific professionals and State agencies, with the goal of promoting the health and well-being of the State’s residents, animals and environment.”

The legislation provides the New Jersey One Health Task Force shall consist of 13 members as follows:

      1. The Secretary of Agriculture, or the secretary’s designee, who shall serve ex officio;

      2. The Commissioner of Environmental Protection, or the commissioner’s designee, who shall serve ex officio;

      3. The Commissioner of Health, or the commissioner’s designee, who shall serve ex officio;

      4. 10 public members to be appointed by the Governor, as follows:

        • one person representing the medical community, who is a medical practitioner licensed to practice in the State;
        • two people who are veterinarians licensed or approved to practice in the State by the State Board of Veterinary Medical Examiners, one of whom shall have expertise, knowledge, and experience with farm animals;
        • one person with expertise, knowledge, and experience in medical research;
        • one person with expertise, knowledge, and experience in zoonotic diseases;
        • two people with expertise, knowledge, and experience in epidemiology or biomedical sciences; and
        • three people representing the State’s academic community with expertise, knowledge, and experience in public health, ecology, natural resources, or environmental and biological sciences.

The New Jersey Department of Agriculture explains the purpose of the One Health initiative as follows:

New Jersey was the first state in the nation to legislate a One Health initiative by establishing the OHTF (P.L. 2021, Chapter 117). “One Health” is a concept that recognizes the strong connections and interdependencies between human, animal, and environmental health, and calls for a collaborative, multi-sector, and transdisciplinary approach. The OHTF is comprised of members representing a variety of disciplines, including human and veterinary medicine, public health, epidemiology, and academic research.

The Strategic Plan sets forth six major goals for the OHTF to accomplish:

      1. Strengthening One Health Coordination and Collaboration,

      2. Stimulating Interdisciplinary Health Research and Innovation,

      3. Developing a One Health Cognizant Workforce,

      4. Increasing Public Awareness of the Importance of One Health,

      5. Improving Data Accessibility Across Sectors and Disciplines, and

      6. Ensuring Sustainability for the One Health Approach in New Jersey.

Each goal is supported by underlying short-term (one-year) or longer-term (3-5 year) objectives. The Task Force’s Strategic Planning Committee will revisit and revise these goals and objectives annually to assess progress.

New Jersey Agriculture Secretary Ed Wengryn states: “From food safety to animal disease to soil and water quality, each challenge we face is deeply interconnected. By addressing them holistically, we can ensure the resilience of our agricultural systems.”

New Jersey Department of Environmental Protection Commissioner Shawn M. LaTourette states: “Through the One Health Task Force, New Jersey is working to advance our scientific understanding of the complex relationships between public health, our environment, and plant and animal health,”. “This first Strategic Plan will help spur a coordinated, multi-disciplined response to growing threats to wildlife and agricultural commodities, ultimately better protecting public health.”

New Jersey Department of Health Acting Commissioner Jeff Brown states: “Protecting the public’s health requires understanding and responding to diseases and other health threats that spread between people and animals. It also requires recognizing how these challenges impact our globally connected environment. This strategic plan puts New Jersey at the vanguard of science and public health, providing a roadmap for building the infrastructure that will undergird this complex and essential work.”

You may find more information about New Jersey’s One Health Task Force on the New Jersey Department of Agriculture (NJDA) website.

The New Jersey Department of Agriculture offers a new tool to facilitate interdisciplinary collaboration in New Jersey, the OneHealthConnect listserv.  You may contact me at afox@capehart.com if you need assistance registering for the listserv, and receive rolling email updates or weekly digests.

Are You Ready For The New Jersey Pay Transparency Act?

Editor: Sanmathi (Sanu) Dev, Esq.

Below is an article written by my colleague, Ralph R. Smith, 3rd, Esq., Co-Chair of our firm’s Labor & Employment Group. If you wish to view additional articles and/or be kept up-to-date with labor & employment issues, visit our HR Resource blog by clicking here.

The Pay Transparency Act of New Jersey (“Act”) became law on November 18, 2024, and goes into effect on June 1, 2025. It requires employers to disclose salary ranges in all job postings, including internal and external postings for new jobs, promotions, and transfers. The law further requires that the employer provide a general description of benefits and other compensation programs for which the successful candidate may be eligible. 

The Act applies to employers with 10 or more employees over 20 calendar weeks and who do business, employ persons, and or who take applications for employment within New Jersey, including the State, any county or municipality, or any instrumentality thereof. The law, however, does not indicate whether you count all company employees or only those employed in New Jersey in determining its coverage.

Employers under the Act must disclose the hourly wage, salary, or salary range for job openings and provide a general description of benefits and other compensation programs available for the selected candidate. The law further provides, however, that this requirement does not “prohibit an employer from increasing the wages, benefits, and compensation identified in the job opening posting at the time of making an offer for employment to an applicant.”

In addition, employers must make “reasonable efforts” to announce internal and external promotional opportunities to current employees in the affected department(s) before making a promotion decision. 

The law contains various exceptions to its requirements. The notice requirement for promotions does not apply to promotions based on years of experience or performance, or to promotions made on an emergent basis due to an unforeseen event. The law also expressly excludes temporary help service firms and consulting firms registered with the Division of Consumer Affairs in the Department of Law and Safety from the pay and benefit disclosure requirements for job postings posted for the purpose of identifying qualified applicants for potential future job openings. However, this exception does not apply to job postings for existing job openings.

Finally, the law contains certain new employee protections. Employers are prohibited from discriminating against or discharging employees for exercising their rights under the law, including discussing or disclosing pay-related information, and from asking about salary history during the hiring process. Significantly, the law does not contain a private cause of action. Rather, the Commissioner of Labor and Workforce Development may enforce the provisions of this law by seeking civil penalties in an amount no greater than $300 for the first violation and $600 for each subsequent violation.

With the June 1 enforcement date just around the corner, employers should review all internal and external job postings to ensure that they are complying with the new law and likewise confirm that any outside recruiting agencies that are being utilized are also meeting these new transparency requirements. Moreover, if you do business in states other than New Jersey, be aware that New Jersey is not the only state with this type of law: similar laws exist in other states (e.g., Colorado, Maryland, and California to name just a few) so multi-state employers are wise to take steps to comply with the transparency laws in those states as well.   

Private Sector EMTs and Paramedics Are Now Covered Under New Legislation Signed by New Jersey Governor Creating a High Rebuttable Presumption in Favor of Compensability of Strokes or Heart Attacks

The recent passage of A5909 has generated many questions from hospitals and private sector ambulance companies which provide EMT and paramedic services.  The questions focus on the recently passed legislative overhaul of N.J.S.A. 34:15.7.3.  That original 1988 law is entitled, “Cardiovascular or cerebrovascular injury or death of police, fire or emergency personnel in response to an emergency: presumption of compensability.”

On January 16, 2024, Governor Phil Murphy signed a sweeping overhaul of this 1988 legislation, providing coverage for a new category of employees, namely paramedics and EMTs, and extending the coverage to private sector paramedics and EMTs. The new law covers paramedics and EMTs who suffer a heart attack or stroke while responding to a public safety or medical emergency or remediating from one within a 24-hour period after the emergency has ended.

As readers know, a presumption of compensability shifts the burden of proof to the employer to disprove a case.  The original 1988 public sector cardiovascular or cerebrovascular law employed a preponderance of evidence presumption, meaning essentially that if the employer could prove by more than 50% that the heart attack or stroke was not work related, then employer would prevail.  The overhaul law which was passed last week changed the presumption to a much higher legal standard.  Now the employer has to prove by clear and convincing evidence that the heart attack or stroke was not related to work.  This is the first statute in New Jersey history to apply a clear and convincing evidence standard in workers’ compensation. 

What does this new standard mean? Readers can think of clear and convincing evidence as requiring the employer to offer proof that demonstrates by a high probability that the facts or medical evidence offered by the employer are true or accurate. Merely showing that the employer’s position is more likely than not to be accurate (just over 50%) will be insufficient to meet the clear and convincing evidence standard.  The defense must demonstrate a high probability that its position is accurate.

The questions that have been coming into our office have focused on what the new law means when it refers to private sector EMTs and paramedics.   Does this mean every single paramedic and EMT in New Jersey who has a heart or attack or stroke in close time relation to an emergency call is covered by this high presumption?  Unfortunately, this new law does not provide any commentary.  Here is what it says:

Coverage under this law shall apply to “any career emergency medical technician or paramedic, employed by the State, a county, a municipality or a private sector counterpart, who is engaged in public emergency medical and rescue services.”  Some have asked what the word “counterpart” means.  This is not a legal term, so one can study a dictionary definition.  The word “counterpart” is defined as someone who performs a function that corresponds to that of another person.  Example, the Manager of a baseball team is the counterpart to the Coach of a football team.  They perform similar services for their respective teams.  Does this new law mean that every private sector paramedic and EMT is automatically considered a “counterpart” of a public sector paramedic or EMT? 

Sometimes the Legislature adds comments after a new Bill explaining its analysis of the main changes to the bill.  There are no comments to explain why this law, formerly focused only on the public sector, is now applicable to private sector paramedics and EMTs.   It seems clear that this law will apply to a situation when a hospital or a private company enters into a contract with a municipality, county or the State to provide paramedic or EMT services for residents or facilities within the municipality, county or state. What we cannot tell is if a contract with a public sector employer is a threshold requirement.  Example:  a private sector ambulance company enters into a contract directly with a nursing home to perform emergency services.  Does that make the private sector EMT a “counterpart” under the above definition?  Does it matter that perhaps in the past the municipality used to perform these services with its paid or volunteer EMTs for the nursing home?  No one knows the answer, but we do know this:  arguments for a broad interpretation of this new law will be advanced by paramedics and EMTs who suffer heart attacks or strokes.  Those cases will be tried in the courts, which will eventually provide us with an answer.

It is also important to understand two other major aspects of the legislative overhaul of N.J.S.A. 34:15-7.3. First, the former requirement that the public safety official prove that he or she was “acting under orders from a competent authority in effecting a response” has been deleted.   The private sector paramedic or EMT does not have to demonstrate proof that he or she was ordered to respond to the emergency by some superior from work.

The other point to understand is that covered employees, including paramedics and EMTS, are presumed to be covered while “remediating from a law enforcement public safety or medical emergency.”  This language is also new.   The word “remediating” is defined as “leaving an emergency in a reasonable period of time, not to exceed 24 hours from the end of the emergency, to carry out post-injury agency protection and decompression including measures such as ‘critical incident stress debriefing.’”  In other words, if the heart attack occurs within 24 hours after the emergency has ended, most likely the presumption of compensability will still apply.   Again, this presumption is the highest presumption ever applied to any New Jersey workers’ compensation statute.

The post Private Sector EMTs and Paramedics Are Now Covered Under New Legislation Signed by New Jersey Governor Creating a High Rebuttable Presumption in Favor of Compensability of Strokes or Heart Attacks appeared first on NJ Workers' Comp Blog.

Governor Signs Bill Raising Fees of Evaluating Physicians for Claimants

On July 20, 2023 Governor Murphy approved an amendment to N.J.S.A. 34:15-64 raising the maximum amount that physicians may be paid for opinions regarding need for treatment or estimates of permanent disability.  The maximum fee had been previously set at $600.  Under the new amendment, the maximum fee is now $1,000.  The goal of the bill was to provide parity between the amounts that physicians charge respondents for these kinds of medical evaluations and the amount physicians charge claimants.

Employers should take note of this change because the Division of Workers’ Compensation in New Jersey has a customary practice of assessing half of the cost of the examination of claimants on the employer in a percentage of disability settlement.  For example, if the expert for petitioner charges $600 for an examination and report, the employer would pay $300 and the employee would pay $300.  Now the Judge of Compensation can award $1,000 to the physician with $500 assessed against the employer and $500 assessed against the employee.  That amounts to about a 65% increase for employer and employee.  On Section 20 settlements, the employee pays the entire cost of his or her permanency examination.  There are far more percentage settlements in New Jersey than Section 20 settlements, perhaps two to one in favor of percentage settlements.

The question most asked is this: “Where does it say in the law that the employer must pay half of the cost of the petitioner’s examination on a percentage settlement?”  The answer is that there is no such provision in the law.  No statute in New Jersey requires the employer to pay part of the cost of the employee’s medical report.  There is no regulation that requires the employee to pay part of the cost of the employee’s medical report.  It is just an unwritten practice that has prevailed for many decades. I do not know when this custom commenced in New Jersey.

Another key question: “Does this new amendment affect cases that were filed before the Governor signed the law or only cases that are filed after the law was passed?”  The law says this Act shall take effect immediately.   It makes no comment on retroactivity. The Legislature has a habit of passing laws without addressing specifically when the law is meant to apply.   The language used in this bill is quite common in terms of taking effect immediately, but what was the intent of the legislators as to cases that were filed years ago but not yet resolved?  Does it matter if the medical examination already took place before the new amendment passed on July 20, 2023?

As a general rule, when there is no specific language prohibiting retroactivity, most laws are given secondary retroactivity as a practical solution rather than go back to the Legislature for clarification.  The term secondary retroactivity means that cases that are already in the system when a new law is passed generally get the benefit of the new legal provision.  But no one knows what the intent of the Legislature was specifically on this issue.  Cases that were settled before the law was passed this year and in prior years would not be affected by this new provision.  That is true retroactivity.  But this is certainly an area of ambiguity that should have been clarified. There may need to be guidance from the Division or the Legislature on this issue.  Does it apply to exams that took place before July 20, 2023?  Does it apply to all cases that were active in the Division but only those exams taking place after July 20, 2023?  We don’t know.

The amendment also has a new provision stating as follows: “A psychologist, nurse practitioner, or licensed clinical social worker who provides psychological treatment may be paid a fee, as permitted in accordance with the provisions of this section, for a report or testimony concerning that provider’s course of treatment of the injured worker in that provider’s role as a provider of treatment.”    This provision reflects the changing nature of medicine in New Jersey and in other states.  There are more and more cases involving care provided by psychologists, nurse practitioners and licensed clinical social workers.  In fact, many occupational medical providers retained by respondents have moved to expand potential medical providers beyond only physicians who have been graduated from medical school. 

The post Governor Signs Bill Raising Fees of Evaluating Physicians for Claimants appeared first on NJ Workers' Comp Blog.

Appellate Division Upholds Amendment to Regulation Requiring Charter Schools to Contribute to Transportation Costs of Disabled Students

By: Eric Richwine, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On July 3, 2023, the New Jersey Appellate Division in In re Adoption of N.J.A.C. 6A:27-5.1 upheld the New Jersey Department of Education’s (“the Department”) adoption of an amendment to its regulations governing the transportation of students. This appeal, on behalf of the New Jersey Public Charter Schools Association (“the Association”), arose from the Department’s amendment to N.J.A.C. 6A:27-5.1, which governs the allocation of transportation costs for disabled students who attend out-of-district charter schools. The new subsection, N.J.A.C. 6A:27-5(b), caps the financial responsibility of the district of residence for disabled students’ transportation costs and requires the charter school to pay the remainder of said costs.

Prior to the amendment, the State Board of Education (“the Board”) held a series of three public meetings from June to August of 2020 to discuss the proposed amendment. It also distributed memoranda detailing the proposed change and published a copy of the proposed amendment in the New Jersey Register. Most notably, on September 24, 2020, the Board published a memorandum to notify chief school administrators and charter school project leads about the proposed change. The memorandum included a hyperlink to the proposed regulation itself, as well as an avenue for administrators and members of the public to submit commentary through the Department’s website. Only five comments were received, none of which came from the Association or any charter school. The Board officially approved the amendment on January 6, 2021, and the Department followed suit on January 7, 2021.  

Soon after, the Association appealed to challenge N.J.A.C. 6A:27-5.1(b). It argued that the regulation was ultra vires, i.e., beyond the scope of the Department’s power. It also contended that the regulation should be set aside because the proposal notice did not conform to certain procedural requirements set forth by the Administrative Procedure Act (“APA”).

The Appellate Division first acknowledged that the power of administrative agencies is to be liberally construed in terms of their statutory responsibilities, but the Court does have the power to find for an ultra vires action to set the regulation aside if it is plainly at odds with the statute per the New Jersey Supreme Court’s holding in In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004). However, the Appellate Division emphasized that this is a very high burden, requiring the Association to prove that the Department’s decision indicated a “clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record” per the decision of In re Herrmann, 192 N.J. 19, 27-28 (2007).

With this in mind, the Appellate Division analyzed whether the amendment frustrated the original purpose of the statute. It determined that, under the Charter School Program Act of 1995, the legislature delegated the regulation of non-resident students’ charter school transportation to the Board. Thus, because the amended regulation governed transportation of charter school students with disabilities, the Appellate Division determined that the regulation was consistent with the legislature’s express delegation of authority to the Board to regulate transportation services for students attending out-of-district charter schools. The regulation only specified that any costs above the statutory maximum would be covered by the charter school instead of the parents and therefore did not frustrate the statute’s purpose.

The Appellate Division further rejected the Association’s assertion that the change was invalid for failure to comply with the notice requirements of the APA. Although the Association specifically targeted the proposal for amending the regulation, the Appellate Division found the amendment process to be sufficient, especially considering the fact that the Board conducted three public meetings on the proposal, published the proposed rule, notified lead officials at all charter schools, and even provided a link for the public to offer comments.

In light of its findings, the Appellate Division affirmed and upheld N.J.A.C. 6A:27-5.1(b).

New Pregnant Workers Fairness Act Goes Into Effect This Week

On Tuesday, June 27, 2023, a new federal law that expands the rights of pregnant (and postpartum) workers went into effect nationally. The Pregnant Workers Fairness Act (“PWFA”) provides several new rights and protections for pregnant workers and imposes new obligations on employers. It applies to all employers who employ 15 or more employees.   

Here are some critical provisions of the Act that all employers must know who are covered by this new law:

1.         Reasonable Accommodations: The PWFA requires employers to provide reasonable accommodations to pregnant employees. This includes things such as modifications to tasks, work schedules, or other workplace adjustments that allow pregnant individuals to continue working safely and without jeopardizing their health or the health of their unborn child. Examples of reasonable accommodations may include providing extra breaks, allowing for more frequent restroom visits, or allowing a temporary transfer to less physically demanding tasks.

2.         Protection against Discrimination: The PWFA likewise prohibits employers from discriminating against pregnant workers. It ensures that pregnancy, childbirth, and related medical conditions are protected characteristics under employment anti-discrimination laws. Employers cannot refuse to hire, fire, demote, or take adverse actions against an employee due to pregnancy or its related medical conditions.

3.         Notice and Training Requirements: The PWFA also requires employers to notify their employees of their rights under the Act. Employers must inform workers about their right to reasonable accommodations for pregnancy-related conditions and the prohibition of discrimination based on pregnancy. Additionally, the Act encourages employers to provide training to managers and supervisors to ensure compliance with the law and promote a supportive and inclusive work environment.

As most employers are aware, there were already existing laws that the Equal Employment Opportunity Commission (EEOC) enforces that make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, and/or related medical conditions already. For example, the federal Pregnancy Discrimination Act of 1978 (“PDA”) has long banned such practices; this new law reiterates such prohibitions and expands upon an employer’s duties by actively imposing an accommodation requirement that was not expressly required by the PDA.  

The PWFA does not replace federal, state, or local laws that offer more protection to workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that require the provision of accommodations for pregnant workers. New Jersey happens to be one such state, which has had a reasonable accommodation mandate as part of its Law Against Discrimination since that law was amended to add the requirements in 2014, meaning that these new requirements of the federal PWFA will just impose obligations that have already existed in New Jersey since the Law Against Discrimination was modified. Moreover, like the New Jersey Law Against Discrimination, employers will be able to opt out of providing accommodations to pregnant workers under the PWFA if they can show that doing so presents an “undue hardship” on their business operations.

If you have not brought your policies in line with the modified Law Against Discrimination, the new federal law gives you a second chance to update your anti-pregnancy discrimination policies to meet these new federal requirements that largely mirror those already existing under New Jersey law.    

New Jersey Enacts Bad Faith Law Covering the Payment of Uninsured/Underinsured Motorist Benefits

On January 18, 2022, Governor Murphy signed into law the “New Jersey Insurance Fair Conduct Act” (“IFCA”) which creates a private cause of action for insurance bad faith in the handling and payment of claims for uninsured/underinsured (“UM/UIM”) benefits. Under the IFCA, a claimant “who is unreasonably denied a claim for coverage or payment of benefits or who experiences an unreasonable delay for coverage or payment of benefits, under an uninsured or underinsured motorist policy by an insurer”  may file a civil suit against his/her automobile insurer.

In addition to be able to sue for an unreasonable delay or unreasonable denial of a claim for benefits under an insurance policy, an aggrieved claimant may also sue for any violation of the New Jersey Unfair Claims Settlement Practices Act (N.J.S.A. 17:29B-4). This Act governs “unfair methods of competition and unfair and deceptive acts or practices in the business of insurance.” The deceptive acts or practices include “unfair claim settlement practices,” which enumerates 15 different types of practices which qualify as unfair settlement practices.

A claimant who is able to prove a violation of the IFCA would be entitled to actual damages that shall not exceed three times the applicable coverage amount, interest, reasonable attorney’s fees, and reasonable litigation expenses. Not only are insurers subject to the law, but it also includes any individual or entity that is responsible for determining claims under the policy. That means bad faith liability would apply to third party administrators who handle claims and could potentially apply to individual claims adjustors. Public entities (including joint insurance funds) are excluded from this law. The law takes effect immediately.

The IFCA does not define what is meant by “unreasonable” conduct in denying a claim or what is an “unreasonable” delay in paying benefits. It also leaves open whether a claimant would be entitled to a jury trial to pursue a violation of the IFCA.

What is clear is that this law provides a new remedy for claimants who feel that their insurance company committed bad faith in the handling and payment of their UM/UIM claims. Insurers need to be aware of this new law and may want to take this opportunity to review their claims handling of their UM/UIM claims to be able to defend against lawsuits alleging a violation of this new law.   

Key New Jersey Legislation In 2022: Expansion Of Compensability Of Parking Lot Injuries And Resumption Of Public Health Emergency

In the first few days of 2022, two major legislative developments have significantly impacted workers’ compensation law.  The legislation effectively repealing the Supreme Court decision in Hersh v. County of Morris, 217 N.J. 236 (2014) will have a long-term impact on workers’ compensation in New Jersey; the resumption of the public health emergency will likely have only a short-term impact.

Governor Signs S771

Governor Phil Murphy signed S771 on January 10, 2022, which added the following new language in N.J.S.A. 34: 15-36 in relation to compensability of accidents in parking lots:

Employment shall also be deemed to commence, if an employer provides or designates a parking area for use by an employee, when an employee arrives at the parking area prior to reporting for work and shall terminate when an employee leaves the parking area at the end of a work period; provided that, if the site of the parking area is separate from the place of employment, an employee shall be deemed to be in the course of employment while the employee travels directly from the parking area to the place of employment prior to reporting for work and while the employee travels directly from the place of employment to the parking area at the end of a work period.

This new provision was a response to the aforesaid Hersh case, which involved an injury to an employee of the County of Morris, which rented space in a private garage for 65 employees.  The decision in Hersh created a great deal of controversy and discussion.  The facts were that Mrs. Hersh could not park in the county building next to her office because she lacked seniority, so she parked in the private garage in one of the 65 leased spaces.  She then walked one-half block to Washington Street.  While crossing the street, she was struck and was seriously injured by a motor vehicle which had run a red light. The petitioner’s injuries were found not compensable because the County did not own the garage and did not control the garage.  The Supreme Court found that the County did not derive a direct business interest from paying for employees to park in the private garage and noted that the accident occurred in a public street. The Court also commented that there was also no added or special hazard in crossing the public street.

                The new legislation is significant in the following respects:

  1. It may not matter any longer that the employer does not own or control the parking lot, particularly if the parking area is not adjacent to the employer’s place of business;
  2. It will also not matter that the injury occurred while the employee was walking on public property on the way to the employer’s place of business from a lot designated or provided by the employer. This accident is now compensable.
  3. What matters is whether the employer “provides or designates a parking area for use by an employee.”

In examining this bolded phrase more closely, one can say that the word “designates” is fairly clear in meaning.  A parking area marked off for one employer’s use for its employees will clearly fall within this definition.   But that has been the law for a long time!  There was no need for a new law to tell us the designation of a parking area by an employer means controlling parking.  The problematic word is the verb “provides.”  What is the legal definition of “provides?”  Well, “provides” is not really a word with a legal definition at all.  The dictionary definition is “makes available for use.”  Clearly, that applies to the situation in Hersh because the County leased and therefore provided parking.  But many employers lease space in a building and do not designate any specific parking area alongside the place of employment.  Yet there may be ample parking.  When asked by employees or job applicants about parking, such employers may respond that parking is provided, simply meaning that employees will not have to pay for parking.   Does an employer “provide” parking when the employer makes sure in its lease that its employees have access to parking lots at no cost to the employee, even if the employer does not own the lot or control the lot?

What if judges interpret the word “provided” in this expansive way?  Then virtually all injuries in parking lots will be found compensable now, whether the employer is just a tenant in the building or not.  That results in a complete reversal of the 1979 Amendments.   Only injuries occurring to employees who park in public streets will then be found non-compensable.  Such a reading would clearly conflict with the most important paragraph in N.J.S.A 34:15-36 in respect to commencement of employment:

Employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer…”  This language is the heart of the so-called “premises rule.”  The new parking language did not remove the 1979 definition of commencement of employment. It is still there.  Control or the absence of control is essential to the definition.  The key language is: “excluding areas not under the control of the employer.” 

How does one square this language about areas not under the control of the employer with the language in the new law about an employer which provides a parking area?  Does the employer have to argue that the landlord, not the tenant, provides the parking area? If that is the argument, the counter argument will be that all employers which lease space pay for common area maintenance charges and therefore indirectly provide parking.  Using the wrong word in a statute can be like pulling on a thread.

In the opinion of this practitioner, S771 conflicts with the premises rule. The word “provides” is the problematic word that will lead to a plethora of appeals.  Counsel for petitioners injured in parking lots where space is leased are going to argue for broad interpretation of “provides,” and employers are going to argue that the law still excludes areas not under the control of the employer.  One does not need a crystal ball to predict that the Supreme Court ironically will someday have to resolve an inherent conflict created by a legislative response to negate the Supreme Court’s own 2014 decision!   My own guess is that the sponsors of this new law were thinking of how to counter the result in Hersh, which involved off-site parking leased by the employer.  If the law had just focused on off-site parking areas, there would not likely be a wave of future litigation over the meaning of “provides.” 

One other point is worth mentioning about S771, and it is a fairly common problem encountered with workers’ compensation legislation.  Just as with the passage of the Hand and Foot Bill two years ago, this legislation fails to make clear which cases will be covered.  By stating “this law shall take effect immediately,” the legislation did not answer whether the new law applies only to cases that are filed after January 10, 2022 or applies to all cases presently pending in the Division as of January 10, 2022.

The Resumption Of A Public Health Emergency

Executive Order 280 signed by Governor Murphy this week reinstates a public health emergency in New Jersey.  By way of background, Governor Murphy signed S2380 on September 14, 2021, which defined certain Essential Workers who contracted COVID-19 at work.  The law created a rebuttable presumption that the virus was work related for such Essential Employees.  The Essential Employee law specifically referenced the contraction of COVID-19 during the public health emergency.

In June 2021, Governor Murphy declared that the public health emergency had ended. The Governor did not mention anything about the end of the legal presumption, but many practitioners, including the undersigned, reasoned that there was no longer a presumption since there was no longer a public health emergency. This week’s renewal of the public health emergency will certainly be viewed by judges of compensation to mean that the presumption of compensability again prevails.  As readers know, this legal presumption shifts the burden of proof to the employer to disprove that the virus was contracted at work.  There is, however, no presumption of impairment. The burden of proof remains on the injured employee to prove a compensable impairment for purposes of obtaining an award of permanent partial or total disability benefits.

The post Key New Jersey Legislation In 2022: Expansion Of Compensability Of Parking Lot Injuries And Resumption Of Public Health Emergency appeared first on NJ Workers' Comp Blog.

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