New Jersey § 43:21-27

§ 43:21-27.

As used in this act, unless the context clearly requires otherwise: (a)(1) “ Covered employer ” means, with respect to whether an employer is required to provide benefits during

an employee's own disability pursuant to P.L.1948, c. 110 ( C.43:21-25 et al.), any individual or type of organization, including any partnership, association,

trust, estate, joint-stock company, insurance company or corporation, whether domestic

or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof,

or the legal representative of a deceased person, who is an employer subject to the

“unemployment compensation law” ( R.S.43:21-1 et seq. ), except the State, its political subdivisions, and any instrumentality of the State

unless such governmental entity elects to become a covered employer pursuant to paragraph

(2) of this subsection (a); provided, however, that commencing with the effective

date of this act, the State of New Jersey, including Rutgers, The State University

and the New Jersey Institute of Technology, shall be deemed a covered employer, as

defined herein. “ Covered employer ” means, after June 30, 2009, with respect to whether the employer is an employer

whose employees are eligible for benefits during periods of family temporary disability

leave pursuant to P.L.1948, c. 110 ( C.43:21-25 et al.), and, after December 31, 2008, whether employees of the employer are required

to make contributions pursuant to R.S.43:21-7(d)(1)(G)(ii) , any individual or type of organization, including any partnership, association,

trust, estate, joint-stock company, insurance company or domestic or foreign corporation,

or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal

representative of a deceased person, who is an employer subject to the “unemployment

compensation law” ( R.S.43:21-1 et seq. ), including any governmental entity or instrumentality which is an employer under R.S.43:21-19(h)(5) , notwithstanding that the governmental entity or instrumentality has not elected

to be a covered employer pursuant to paragraph (2) of this subsection (a). (2) Any governmental entity or instrumentality which is an employer under R.S.43:21-19(h)(5) may, with respect to the provision of benefits during an employee's own disability

pursuant to P.L.1948, c. 110 ( C.43:21-25 et al.), elect to become a “covered employer” under this subsection beginning with

the date on which its coverage under R.S.43:21-19(h)(5) begins or as of January 1 of any year thereafter by filing written notice of such

election with the division within at least 30 days of the effective date. Such election shall remain in effect for at least two full calendar years and may

be terminated as of January 1 of any year thereafter by filing with the division a

written notice of termination at least 30 days prior to the termination date. (b)(1) “ Covered individual ” means, with respect to whether an individual is eligible for benefits during an

individual's own disability pursuant to P.L.1948, c. 110 ( C.43:21-25 et al.), any person who is in employment, as defined in the “unemployment compensation

law” ( R.S.43:21-1 et seq. ), for which the individual is entitled to remuneration from a covered employer, or

who has been out of such employment for less than two weeks, except that a “covered

individual” who is employed by the State of New Jersey, including Rutgers, The State

University or the New Jersey Institute of Technology, or by any governmental entity

or instrumentality which elects to become a “covered employer” pursuant to P.L.1948.

c.110 ( C.43:21-25 et al.) prior to July 1, 2019 shall not be eligible to receive any benefits under

the “Temporary Disability Benefits Law” until such individual has exhausted all sick

leave accumulated as an employee in the classified service of the State or accumulated

under terms and conditions similar to classified employees or accumulated under the

terms and conditions pursuant to the laws of this State or as the result of a negotiated

contract with any governmental entity or instrumentality which elects to become a

“covered employer”; and, after June 30, 2019 may be required, prior to receiving

any benefits under the “Temporary Disability Benefits Law,” to use up to two weeks

of sick leave accumulated as an employee in the classified service of the State or

accumulated under terms and conditions similar to classified employees or accumulated

under the terms and conditions pursuant to the laws of this State or as the result

of a negotiated contract with any governmental entity or instrumentality which elects

to become a “covered employer,” except that the individual shall not be required to

use the individual's last week's worth of accumulated sick time before receiving the

benefits. “Covered individual” shall not mean, with respect to whether an individual is eligible

for benefits during an individual's own disability pursuant to P.L.1948, c. 110 ( C.43:21-25 et al.), any member of the Division of State Police in the Department of Law and

Public Safety. (2) “ Covered individual ” means, with respect to whether an individual is eligible for benefits during the

individual's period of family temporary disability leave pursuant to P.L.1948, c.

110 ( C.43:21-25 et al.), any individual who is in employment, as defined in the “unemployment compensation

law” ( R.S.43:21-1 et seq. ), for which the individual is entitled to remuneration from a covered employer, or

who has been out of that employment for less than two weeks. (c) “ Division ” or “ commission ” means the Division of Unemployment and Temporary Disability Insurance of the Department

of Labor and Workforce Development, and any transaction or exercise of authority by

the director of the division shall be deemed to be performed by the division. (d) “ Day ” shall mean a full calendar day beginning and ending at midnight. (e) “ Disability ” shall mean such disability as is compensable under section 5 of P.L.1948, c. 110

( C.43:21-29 ). (1) “ Disability ” shall, in the event of a state of emergency declared by the Governor, or when indicated

to be needed by the Commissioner of Health or other public health authority, also

include an illness caused by an epidemic of a communicable disease, a known or suspected

exposure to the communicable disease, or efforts to prevent spread of the communicable

disease, which requires in-home care or treatment of the employee due to: (i) the issuance by a healthcare provider or the commissioner or other public health

authority of a determination that the presence in the community of the employee may

jeopardize the health of others; and (ii) the recommendation, direction, or order of the provider or authority that the

employee be isolated or quarantined as a result of suspected exposure to a communicable

disease . (f) “ Disability benefits ” shall mean any cash payments which are payable to a covered individual for all or

part of a period of disability pursuant to P.L.1948, c. 110 ( C.43:21-25 et al.). (g) “ Period of disability ” with respect to any covered individual shall mean: (1) The entire period of time during which the covered individual is continuously

and totally unable to perform the duties of the covered individual's employment because

of the covered individual's own disability, except that two periods of disability

due to the same or related cause or condition and separated by a period of not more

than 14 days shall be considered as one continuous period of disability; provided

the individual has earned wages during such 14-day period with the employer who was

the individual's last employer immediately preceding the first period of disability;

and (2) On or after July 1, 2009, the entire period of family temporary disability leave

taken from employment by the covered individual. (h) “ Wages ” shall mean all compensation payable by covered employers to covered individuals

for personal services, including commissions and bonuses and the cash value of all

compensation payable in any medium other than cash. (i)(1) (Deleted by amendment, P.L.2001, c. 17 ). (2) (Deleted by amendment, P.L.2001, c. 17 ). (3) (Deleted by amendment, P.L.2013, c. 221 ). (4) “ Base week ” with respect to periods of disability commencing on or after January 1, 2001, means

any calendar week of a covered individual's base year during which the covered individual

earned in employment from a covered employer remuneration not less than an amount

20 times the minimum wage in effect pursuant to section 5 of P.L.1966, c. 113 ( C.34:11-56a4 ) on October 1 of the calendar year preceding the calendar year in which the benefit

year commences, which amount shall be adjusted to the next higher multiple of $1.00

if not already a multiple thereof, except that if in any calendar week an individual

subject to this paragraph is in employment with more than one employer, the covered

individual may in that calendar week establish a base week with respect to each of

the employers from whom the covered individual earns remuneration equal to not less

than the amount defined in this paragraph during that week. (5) In the case of an individual who is laid off or furloughed by an employer curtailing

operations because of a state of emergency declared after October 22, 2012, any week

in which the individual is separated from employment due to that layoff or furlough,

up to a maximum of 13 weeks, shall be regarded as a week which is a “base week” for

the purpose of determining whether the individual becomes eligible for benefits pursuant

to subsection (d) or (e) of section 17 of P.L.1948, c. 110 ( C.43:21-41 ), but shall not be regarded as a base week when calculating the “average weekly wage”

pursuant to subsection (j) of this section. (j)(1) “ Average weekly wage ” means, with respect to the payment of benefits commencing before the effective date

of P.L.2019, c. 37 ( C.43:21-45.2 et al.), 1 the amount derived by dividing a covered individual's total wages earned from the

individual's most recent covered employer during the base weeks in the eight calendar

weeks immediately preceding the calendar week in which a period of disability commenced,

by the number of such base weeks, and, with respect to the payment of benefits commencing

on or after the effective date of P.L.2019, c. 37 ( C.43:21-45.2 et al.), the amount derived by dividing a covered individual's total wages earned

from the individual's most recent covered employer during the base weeks in the base

year immediately preceding the calendar week in which a period of disability commenced,

or in which the individual submits a claim for the benefits pursuant to subsection

h. of section 10 of P.L.2008, c. 17 ( C.43:21-39.1 ) or paragraph (3) of subsection (a) of section 25 of P.L.1948, c. 110 ( C.43:21-49 ), by the number of base weeks. (2) With respect to the payment of benefits commencing before the effective date of P.L.2019, c. 37 ( C.43:21-45.2 et al.), if the computation in paragraph (1) of this subsection (j) yields a result

which is less than the individual's average weekly earnings in employment with all

covered employers during the base weeks in such eight calendar weeks, then the average

weekly wage shall be computed on the basis of earnings from all covered employers

during the base weeks in the eight calendar weeks immediately preceding the week in

which the period of disability commenced, and, with respect to the payment of benefits

commencing on or after the effective date of P.L.2019, c. 37 ( C.43:21-45.2 et al.), if the computation in paragraph (1) of this subsection (j) yields a result

which is less than the individual's average weekly earnings in employment with all

covered employers during the base weeks in the base year, then the average weekly

wage shall be computed on the basis of earnings from all covered employers during

the base weeks in the base year immediately preceding the week in which the period

of disability commences, or in which the individual submits a claim for the benefits

pursuant to subsection h. of section 10 of P.L.2008, c. 17 ( C.43:21-39.1 ) or paragraph (3) of subsection (a) of section 25 of P.L.1948, c. 110 ( C.43:21-49 ). (3) For periods of disability commencing on or after July 1, 2009 and before the effective

date of P.L.2019, c. 37 ( C.43:21-45.2 et al.), if the computations in paragraphs (1) and (2) of this subsection (j) both

yield a result which is less than the individual's average weekly earnings in employment

with all covered employers during the base weeks in the 26 calendar weeks immediately

preceding the week in which the period of disability commenced, then the average weekly

wage shall, upon a written request to the department by the individual on a form provided

by the department, be computed by the department on the basis of earnings from all

covered employers of the individual during the base weeks in those 26 calendar weeks,

and, in the case of a claim for benefits from a private plan, that computation of

the average weekly wage shall be provided by the department to the individual and

the individual's employer. When determining the “average weekly wage” with respect to a period of family temporary

disability leave for an individual who has a period of family temporary disability

immediately after the individual has a period of disability for the individual's own

disability, the period of disability is deemed to have commenced at the beginning

of the period of disability for the individual's own disability, not the period of

family temporary disability. (k) “ Child ” means a biological, adopted, or foster child, stepchild or legal ward of a covered

individual, child of a domestic partner of the covered individual, or child of a civil

union partner of the covered individual, including a child who becomes the child of

a parent pursuant to a valid written agreement between the parent and a gestational

carrier. ( l ) “ Domestic partner ” means a domestic partner as defined in section 3 of P.L.2003, c. 246 ( C.26:8A-3 ). (m) “ Civil union ” means a civil union as defined in section 2 of P.L.2006, c. 103 ( C.37:1-29 ). (n) “ Family member ” means a sibling, grandparent, grandchild, child, spouse, domestic partner, civil

union partner, parent-in-law, or parent of a covered individual, or any other individual

related by blood to the employee, and any other individual that the employee shows

to have a close association with the employee which is the equivalent of a family

relationship. ( o ) “ Family temporary disability leave ” means leave taken by a covered individual from work with an employer to: (1) participate in the providing of care, as defined in the “Family Leave Act,” P.L.1989, c. 261 ( C.34:11B-1 et seq. ) and regulations adopted pursuant to that act, for a family member of the individual

made necessary by a serious health condition of the family member; (2) be with a child during the first 12 months after the child's birth, if the individual,

or the domestic partner or civil union partner of the individual, is a biological

parent of the child, or is a parent of the child pursuant to a valid gestational carrier

agreement, or the first 12 months after the placement of the child for adoption or

as a foster child with the individual; (3) engage in activities for which unpaid leave may be taken pursuant to section 3

of the “New Jersey Security and Financial Empowerment Act,” P.L.2013, c. 82 ( C.34:11C-3 ), on the individual's own behalf, if the individual is a victim of an incident of

domestic violence, a sexually violent offense, or to assist a family member of the

individual who has been a victim of an incident of domestic violence, or a sexually

violent offense, provided that any time taken by an individual who has been a victim

of an incident of domestic violence, or a sexually violent offense for which the individual

receives benefits for a disability caused by the violence or offense shall be regarded

as a period of disability of the individual and not as a period of family temporary

disability leave ; or (4) in the event of a state of emergency declared by the Governor, or when indicated

to be needed by the Commissioner of Health or other public health authority, an epidemic

of a communicable disease, a known or suspected exposure to the communicable disease,

or efforts to prevent spread of the communicable disease, provide in-home care or

treatment of the family member of the employee required due to: (i) the issuance by a healthcare provider or the commissioner or other public health

authority of a determination that the presence in the community of the family member

may jeopardize the health of others; and (ii) the recommendation, direction, or order of the provider or authority that the

family member be isolated or quarantined as a result of suspected exposure to a communicable

disease . “Family temporary disability leave” does not include any period of time in which a

covered individual is paid benefits pursuant to P.L.1948, c. 110 ( C.43:21-25 et al.) because the individual is unable to perform the duties of the individual's

employment due to the individual's own disability. (p) “ Health care provider ” means a health care provider as defined in the “Family Leave Act,” P.L.1989, c. 261 ( C.34:11B-1 et seq. ), and any regulations adopted pursuant to that act. (q) “ Parent of a covered individual ” means a biological parent, foster parent, adoptive parent, or stepparent of the

covered individual or a person who was a legal guardian of the covered individual

when the covered individual was a child, or who became the parent of the covered individual

pursuant to a valid written agreement between the parent and a gestational carrier. (r) “ Placement for adoption ” means the time when a covered individual adopts a child or becomes responsible for

a child pending adoption by the covered individual. (s) “ Serious health condition ” means an illness, injury, impairment or physical or mental condition which requires:

inpatient care in a hospital, hospice, or residential medical care facility; or continuing

medical treatment or continuing supervision by a health care provider. (t) “ 12-month period ” means, with respect to an individual who establishes a valid claim for disability

benefits during a period of family temporary disability leave, the 365 consecutive

days that begin with the first day that the individual first establishes the claim. (u) “ State of emergency ” means a natural or man-made disaster or emergency for which a state of emergency

has been declared by the President of the United States or the Governor, or for which

a state of emergency has been declared by a municipal emergency management coordinator. (v) “ Base year ” with respect to benefit years commencing on or after the effective date of P.L.2019, c. 37 ( C.43:21-45.2 et al.), means the first four of the last five completed calendar quarters immediately

preceding the period of disability, except that, if the individual does not have sufficient

qualifying weeks or wages in the individual's base year to qualify for benefits, the

individual shall have the option of designating that the individual's base year shall

be the “ alternative base year ,” which means the last four completed calendar quarters immediately preceding the

period of disability; and except that if the individual also does not have sufficient

qualifying weeks or wages in the last four completed calendar quarters immediately

preceding the period of disability, “ alternative base year ” means the last three completed calendar quarters immediately preceding the individual's

benefit year and, of the calendar quarter in which the period of disability commences,

the portion of the quarter which occurs before the commencing of the period of disability. The division shall inform the individual of the individual's options under this

subsection. If information regarding weeks and wages for the calendar quarter or quarters immediately

preceding the period of disability is not available to the division from the regular

quarterly reports of wage information and the division is not able to obtain the information

using other means pursuant to State or federal law, the division may base the determination

of eligibility for benefits on the affidavit of an individual with respect to weeks

and wages for that calendar quarter. The individual shall furnish payroll documentation, if available, in support of

the affidavit. A determination of benefits based on an alternative base year shall be adjusted

when the quarterly report of wage information from the employer is received if that

information causes a change in the determination. 1

L.2019, c. 37, eff. Feb. 19, 2019.