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UNDERSTANDING FAMILY MEDICAL LEAVE by Carolyne S. Kalson

Added on 02/23/2017 by kalsonlaw

There are actually three family medical leave acts that apply to employees in the State of New Jersey. The Federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA) cover the absences of an employee from work. The third Act, commonly referred to as paid family leave, is administered through the Department of Labor. It provides for six weeks paid time off from work to care for a sick relative or a newborn or adopted child. The major difference between the FMLA and the NJFLA is that the Federal Act covers the employees own serious health condition. The NJFLA does not provide for an employee’s own medical condition. In order to be eligible for either the FMLA or NJFLA, there must be a “serious health condition”. A serious health condition is one that requires inpatient care or continuing course of treatment by a health care provider. Both the State and Federal Acts provides job protection to an employee out of work. The paid family leave act does not provide job protection.

Family Leave is unpaid time off. The employee may be receiving some type of compensation from workers’ compensation, state disability, private disability, or even the New Jersey paid family leave. Many times, when I ask an employee if they were placed on family medical leave, they reply that they received workers’ compensation or state disability. That is not the correct answer to the question. The workers’ compensation or state disability may be how they were compensated during their time off from work, but does not provide protection for the actual job absence. Even if you were injured in a work related accident, you are eligible for Federal Family Medical Leave if you were unable to perform the essential functions of your job for more than three days and have a serious health condition.

To be eligible for the Federal Family and Medical Leave Act (FMLA), an employee must work for an employer that has more than fifty employees within a 75 mile radius of their work site. The exception to that requirement is public employees. All public employers are covered by the FMLA regardless of the number of employees. In addition, the employee must have worked at least twelve months for the employer and must have worked at least 1,250 hours during the twelve months preceding the leave. An employee is generally entitled to up to twelve work weeks of leave in a one year period. However, after the FMLA period an extended leave of absence, for a limited term, may be considered a reasonable accommodation under the New Jersey Law Against Discrimination (LAD). Both the Federal and New Jersey Family Leave Act require that you provide reasonable or practical notice of your need for family leave unless it is an emergent situation. In addition, under both the FMLA and NJFLA, leave can be taken on an intermittent basis meaning the twelve weeks do not have to run consecutively.

The FMLA places affirmative burdens on the employer. An employer has a duty to inform employees of their rights and obligations under the family leave acts. Generally, this information should be included in any employee handbook or manual or provided in a poster format wherever the employer regularly posts employee announcements. The regulations state an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA qualifying leave and the anticipated timing and duration. The employer must then inquire further. The employee need not use the words “family medical leave” in order to put an employer on notice that the acts may have relevance to the employee’s absence from work. After the employer receives information sufficient to place them on notice that there may be an FMLA qualifying leave or event, the employer must provide written notice articulating the specific expectations and obligations of the employee as well as the consequences of the failure to meet these obligations. The Department of Labor regulations provide the essential requirements for the notice. The employer must tell the employee of the need to submit medical certification from a doctor of the serious health condition and the consequences of failing to do same. In addition, the employer must tell the employee if they are required to substitute any accrued or paid leave prior to going on family leave. Additionally, the employer must notify the employee of any obligations to make premium payments toward their health insurance while out on a leave. Also required is that the employer notify the employee of any need to present a fitness for duty certificate to be returned to work. If the employer contends that the employee is “a key employee” such that the employer can not do without them, the employee must be so notified in the initial notice that their job will not be held for them. However, the definition of a key employee is limited.

Over the years, I have seen numerous problems regarding the payment of health insurance premiums while out on Family and Medical Leave. The general rule is that if an employer pays 100% of the medical premium, they must continue to do so during the Family Medical Leave. Similarly, if the employer pays 80% of the medical premium and the employee has a 20% co-payment, the employer can only ask the employee for their 20% payment during the course of their leave. It is totally improper for the employer to discontinue the employee’s health insurance when out on FMLA.

Retaliation against an employee who asks for or receives FMLA leave is also unlawful. Therefore, it is extremely dangerous for an employer to terminate or discipline an employee during leave or shortly after their return from protected FMLA leave. However, it does occur. Many times an employer has surveillance on an employee while they are out on medical leave. If they observe an employee engaging in work at a second employer or other activities that are inconsistent with their alleged inability to work, discipline may be warranted and upheld. The FMLA law also provides that the employee is to be returned to the same or equivalent position upon return from leave. The regulations provide that an equivalent position must be virtually identical to the employee’s former position in terms of pay, benefits and working conditions including privileges and status. It must involve the same or substantially similar duties and responsibilities, as well as substantial equivalent skill, effort, responsibility and authority.

I’ve seen many cases where the employer is unaware of its obligations under the state and federal family medical leave acts. In addition, employers are often unaware of how to apply or administer intermittent leave. Recently, I had an employee who was terminated for excessive absence even though she was on FMLA approved intermittent leave. The employer did not correctly count the total days she was absent from work. After proving to the employer and its attorney that she had not used all of her allotted time, we were able to negotiate a successful severance package for the employee.

If you have questions regarding your right to Family Medical Leave or believe you have been retaliated against for using the leave, please contact my office for a consultation.