N.J. Admin. Code § 12:21-1.2

Current through Register Vol. 56, No. 21, November 4, 2024

Section 12:21-1.2 - Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Act" means the Temporary Disability Benefits Law, N.J.S.A. 43:21-25 et seq., as amended by P.L. 2008, c. 17, which extends the temporary disability benefits program, so as to provide to covered individuals family leave benefits, a monetary benefit (not a leave entitlement), for one or more of the qualifying reasons as set forth at N.J.S.A. 43:21-27(o).

"Base year" with respect to a period of family leave means the first four of the last five completed calendar quarters immediately preceding the period of family leave, 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 "alternate base year," which means the last four completed calendar quarters immediately preceding the period of family leave; 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 family leave, "alternate 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 family leave. "Disability" for the purpose of determining the base year with respect to a period of family leave for an individual who has a period of family leave immediately after the individual has a period of disability for the individual's own disability, means where an individual suffers any accident or sickness resulting in the individual's total inability to perform the duties of employment. For the purpose of defining the term "base year," the date on which a period of family leave commences is synonymous with the first day on which the individual establishes a claim for family leave insurance benefits.

"Benefits" or "family temporary disability benefits" or "family leave insurance benefits" means the benefits payable to a covered individual under P.L. 2008, c. 17 in order to compensate for wage loss suffered because of the need of the covered individual to participate in one or more of the qualifying reasons as set forth at N.J.S.A. 43:21-27(o).

"Bond" or "bonding" with a newborn child or newly adopted or fostered child, including a child who becomes the child of a parent pursuant to a valid written agreement between the parents and a gestational carrier, means to develop a psychological and emotional attachment between a child and his or her primary care giver(s). The development of this attachment or bond between child and care giver(s) requires being in one another's presence.

"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.

"Care giver" or "claimant" means the family member who is providing the required care.

"Care recipient" means the family member who is receiving care for a serious health condition or the newborn child or newly adopted or fostered child, including a child who becomes the child of a parent pursuant to a valid written agreement between the parent and a gestational carrier, with whom the "care giver" is bonding.

"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.

"Civil union" means a civil union as defined in 37:1-29.

"Claimant" means an individual who has filed a claim for family leave insurance benefits or who has notified the Division or the employer, nominee, designee, trustee, union, association of employees, insurer or organization paying benefits under a private plan that he or she expects to file such a claim.

"Commissioner" means the Commissioner of Labor and Workforce Development.

"Continued claim" means a claim for family leave insurance benefits filed subsequent to the first or reestablished claim, which claim is within the same 12-month period, for the same care recipient and during or following employment with the same employer. A continued claim shall include scheduled intermittent family leave and extensions of scheduled intermittent family leave.

"Covered individual" or "employee" means any individual who is in employment, as the term "employment" is defined at 43:21-19(i)(1) or any individual who has been out of such employment for less than two weeks.

"Director" means the Director of the Division of Temporary Disability Insurance in the Department of Labor and Workforce Development.

"Division" means the Division of Temporary Disability Insurance in the Department of Labor and Workforce Development.

"Domestic partner" means a domestic partner as defined in 26:8A-3.

"Employer" means 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" (43:21-1 et seq.), including any governmental entity or instrumentality, which is an employer under 43:21-19(h)(5), notwithstanding that the governmental entity or instrumentality has not elected to be a covered employer pursuant to 43:21-27(a)(2).

"Family leave" or "family temporary disability leave" means leave taken by a covered individual from work with an employer to:

1. Participate in the providing of care 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 N.J.S.A. 34:11C-3 of the New Jersey Security and Financial Empowerment Act, 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, 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 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 the New Jersey Department of Health (Commissioner) 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, provided in-home care or treatment of the family member of the employee is 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 leave" does not include any period of time during which a covered individual is paid temporary disability benefits pursuant to the New Jersey Temporary Benefits Law, N.J.S.A. 43:2125 et seq., because the individual is unable to perform the duties of the individual's employment due to the individual's own disability.

"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.

"Family Temporary Disability Leave Account" means a separate account within the State Disability Benefits Fund into which is deposited all worker contributions collected under 43:21-7(d)(1)(G)(ii).

"First claim" means the claim for family leave insurance benefits initially filed on a form prescribed by the Division, the filing of which claim begins the running of the 12-month period during which a claimant is entitled to the maximum family leave insurance benefit prescribed at 43:21-38.

"Fund" means the State Disability Benefits Fund, as set forth in 43:21-46.

"Health care provider" means a duly licensed health care provider or any other health care provider deemed appropriate by the Director of the Division on Civil Rights, including, but not limited to, any person licensed under Federal, state, or local law, or the laws of a foreign nation, to provide health care services.

"Insurer" means any insurance company duly authorized to do business in the State of New Jersey, employer acting as a self-insurer, nominee, designee, trustee, union, association of employees or organization, which has undertaken to pay benefits under a private plan.

"Intermittent family leave" means periods of non-consecutive leave taken within a 12-month period in intervals of not less than one day.

"Licensed medical practitioner" means a licensed physician, dentist, optometrist, podiatrist, practicing psychologist, advanced practice nurse or chiropractor.

"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 a child pursuant to a valid written agreement between the parent and a gestational carrier.

"Private plan" means a private plan approved by the Division as defined in 43:21-32.

"Reestablished claim" means a claim for family leave insurance benefits filed subsequent to a first claim within the same 12-month period, which claim is either a claim for a different care recipient or a claim during or following employment with a different employer.

"Serious health condition" means an illness, injury, impairment, or physical or mental condition which requires:

1. Inpatient care in a hospital, hospice, or residential medical care facility; or

2. Continuing medical treatment or continuing supervision by a health care provider.

As used in this definition, "continuing medical treatment or continuing supervision by a health care provider" means:

1. A period of incapacity (that is, inability to work, attend school or perform regular daily activities due to a serious health condition, treatment therefore and recovery therefrom) of more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

i. Treatment two or more times by a health care provider; or

ii. Treatment by a health care provider on one occasion, which results in a regimen of continuing treatment under the supervision of a health care provider;

2. Any period of incapacity due to pregnancy, or for prenatal care;

3. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition;

4. A period of incapacity, which is permanent or long-term, due to a condition for which treatment may not be effective (such as Alzheimer's disease, a severe stroke or the terminal stages of a disease) where the individual is under continuing supervision of, but need not be receiving active treatment by a health care provider; or

5. Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity or more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy) or kidney disease (dialysis).

"Stepparent of the covered individual" means the person to whom the covered individual's biological parent is either currently married or with whom the covered individual's biological parent is currently sharing a civil union.

"Twelve-month period" means, with respect to an individual who establishes a valid first claim for family leave insurance benefits, the 365 consecutive days that begin with the first day that the individual establishes the claim.

"Week" means a period of seven consecutive days.

N.J. Admin. Code § 12:21-1.2

Amended by 55 N.J.R. 1836(a), effective 8/21/2023