Concerns family leave and gestational carriers.

S4032

SENATE, No. 4032

STATE OF NEW JERSEY

222nd LEGISLATURE

�

INTRODUCED MARCH 19, 2026

Sponsored by:

Senator� JOSEPH F. VITALE

District 19 (Middlesex)

SYNOPSIS

���� Concerns family leave and gestational carriers.

CURRENT VERSION OF TEXT

���� As introduced.

��

An Act
concerning family leave and gestational carriers and
amending P.L.1989, c.261 and P.L.1948, c.110.

����
Be It
Enacted
by the Senate and General Assembly of
the State of New Jersey:

���� 1.��� Section 3 of P.L.1989,
c.261 (C.34:11B-3) is amended to read as follows:

���� 3.��� As used in this act:

���� a.���� "Child" means
a biological, adopted, foster child, or resource family child, stepchild, legal
ward, or child of a parent, including a child who becomes the child of a parent
pursuant to a valid written agreement between the parent and a gestational
carrier.

���� b.��� "Director"
means the Director of the Division on Civil Rights.

���� c.���� "Division"
means the Division on Civil Rights in the Department of Law and Public Safety.

���� d.��� "Employ" means
to suffer or permit to work for compensation, and includes ongoing, contractual
relationships in which the employer retains substantial direct or indirect
control over the employee's employment opportunities or terms and conditions of
employment.

���� e.���� "Employee"
means a person who is employed for at least 12 months by an employer, with
respect to whom benefits are sought under this act, for not less than 1,000
base hours during the immediately preceding 12-month period.� Any time, up to a
maximum of 90 calendar days, during which a person is laid off or furloughed by
an employer due to that employer curtailing operations because of a state of
emergency declared after October 22, 2012, shall be regarded as time in which
the person is employed for the purpose of determining eligibility for leave
time under this act. In making the determination, the base hours per week
during the layoff or furlough shall be deemed to be the same as the average
number of hours worked per week during the rest of the 12-month period.

���� f.���� "Employer"
means a person or corporation, partnership, individual proprietorship, joint
venture, firm or company or other similar legal entity which engages the
services of an employee and which:

���� (1)�� (Deleted by amendment,
P.L.2019, c.37);

���� (2)�� (Deleted by amendment,
P.L.2019, c.37);

���� (3)�� With respect to the
period of time from the 1,095th day following the effective date of P.L.1989,
c.261 (C.34:11B-1 et seq.) through June 30, 2019, employs 50 or more employees
for each working day during each of 20 or more calendar workweeks in the then
current or immediately preceding calendar year; and

���� (4)�� With respect to any
period of time on or after June 30, 2019, employs 30 or more employees for each
working day during each of 20 or more calendar workweeks in the then current or
immediately preceding calendar year.

���� "Employer" includes
the State, any political subdivision thereof, and all public offices, agencies,
boards or bodies.

���� g.��� "Employment
benefits" means all benefits and policies provided or made available to
employees by an employer, and includes group life insurance, health insurance,
disability insurance, sick leave, annual leave, pensions, or other similar
benefits.

���� h.��� "Parent" means
a person who is the biological parent, adoptive parent, foster parent, resource
family parent, step-parent, parent-in-law or legal guardian, having a
"parent-child relationship" with a child as defined by law, or having
sole or joint legal or physical custody, care, guardianship, or visitation with
a child, or who became the parent of the child pursuant to a valid written
agreement between the parent and a gestational carrier.

���� i.���� "Family
leave" means leave from employment so that the employee may provide care
made necessary by reason of:

���� (1)�� the birth of a child of
the employee, including a child born pursuant to a valid written agreement
between the employee and a gestational carrier
, including, if the employee
is intended to become the parent of a child under a written agreement with a
gestational carrier or otherwise, leave in which the employee provides care for
the person whose pregnancy will result in the child during the person�s
pregnancy and recovery from childbirth
;

���� (2)�� the placement of a child
into foster care with the employee or in connection with adoption of such child
by the employee;

���� (3)�� the serious health
condition of a family member of the employee ; 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 a communicable disease, which:

���� (a)�� requires in-home care or
treatment of a child due to the closure of the school or place of care of the
child of the employee, by order of a public official due to the epidemic or
other public health emergency;

���� (b)�� prompts the issuance by
a public health authority of a determination, including by mandatory
quarantine, requiring or imposing responsive or prophylactic measures as a
result of illness caused by an epidemic of a communicable disease or known or
suspected exposure to the communicable disease because the presence in the
community of a family member in need of care by the employee, would jeopardize
the health of others; or

���� (c)�� results in the
recommendation of a health care provider or public health authority, that a
family member in need of care by the employee voluntarily undergo
self-quarantine as a result of suspected exposure to a communicable disease
because the presence in the community of that family member in need of care by
the employee, would jeopardize the health of others.

���� j.���� "Family
member" means a child, parent, parent-in-law, sibling, grandparent,
grandchild, spouse, domestic partner, or one partner in a civil union couple,
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.

���� k.��� "Reduced leave
schedule" means leave scheduled for fewer than an employee's usual number
of hours worked per workweek but not for fewer than an employee's usual number
of hours worked per workday, unless agreed to by the employee and the employer.

���� l.���� "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.

���� m.�� "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.

���� n.��� "Health care
provider" means a duly licensed health care provider or other health care
provider deemed appropriate by the director.

(cf: P.L.2020, c.23, s.2)

���� 2.��� Section 3 of P.L.1948,
c.110 (C.43:21-27) is amended to read as follows:

���� 3.��� 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.), 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
; or

����
(5) �provide care, if the
individual is intended to become the parent of a child under a written
agreement with a gestational carrier or otherwise, for the person whose
pregnancy will result in the child during the person�s pregnancy and recovery
from childbirth
.

���� "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.

(cf: P.L.2020, c.23, s.3)

���� 3.��� This act shall take
effect immediately.

STATEMENT

����
This bill amends P.L.1948, c.110 and P.L.1989, c.261 to
have the paid and unpaid leave provided under those laws include leave time in
which an employee who is intended to become the parent of a child under a
written agreement with a gestational carrier or otherwise provides care for the
person whose pregnancy will result in the child during the person�s pregnancy
and recovery from childbirth.