Your Rights Under the Family Medical Leave Act (FMLA) And New Jersey Family Leave Act (NJFLA)

As an employee working in the State of New Jersey,eligible employees for the birth or adoption of a child
no doubt you have heard co-workers, friends orand to care for the serious medical condition of a
family mention "family leave" or the "family medicalclose family member (generally a parent, spouse or
leave act." These phrases reference two separatechild). Unlike NJFLA, the FMLA expands leave to
laws that benefit many people working in this State -cover an employee's own serious medical condition. A
the Family Medical Leave Act ("FMLA"), which is aserious medical condition is generally defined as an
federal law, and the New Jersey Family Leave Actillness, injury, impairment or physical or medical
("NJFLA"), which you likely guessed is a state law.condition, which requires in-patient care or continuing
Fundamentally, these laws provide unpaid leavetreatment from a health care provider. Issues
periods during which a qualifying employee's job astriggered by the definition of serious medical condition
well as certain benefits are protected. For non-militaryinclude overlap with an employee's privacy protection
employees, an employee may be entitled to ain his or her medical records and permissible
benefit of 12 weeks unpaid leave in a 12 monthcommunications an employer may have with an
period under the FMLA and 12 weeks of unpaid leaveemployee's medical professionals. Moreover, in certain
in a 24 month period under the NJFLA. The conceptcircumstances, cosmetic or elective surgery may
under both laws is to place an employee in the samequalify as a serious medical condition as well as the
job position after family leave expires.treatment for alcohol or substance abuse as opposed
On the surface, these laws seem relativelyto absences caused by the use of alcohol or drugs.
straightforward regarding the benefits provided. InGiven that the leave provided for under FMLA and
practice, however, issues such as whether aNJFLA may cover the same event, simultaneous
particular employee is entitled to leave, calculation ofrunning of leave under both acts must frequently be
the leave period and simultaneous running of leavedetermined. For example, an individual injured at work
periods under both FMLA and NJFLA frequently arise.whom is unable to work for 12 weeks due to his or
Given the not so obvious pitfalls that surroundher own disability, would exhaust the 12 weeks of
application of these laws, employers often simply dounpaid leave under FMLA. If, on the final day of the
not know the law or worse, believe, incorrectly, thatemployee's own disability, his or her spouse is
they fully comprehend the intricacies of the leaveseriously injured in a motor vehicle accident, the
acts, both of which lead to misapplication of the law.employee is then entitled to 12 weeks unpaid leave
In general, the FMLA and NJFLA apply to all privateunder NJFLA. Contrast, however, a situation where
employers with 50 or more employees and all publican employee must provide care to a child for a
and governmental agencies regardless of the numberserious medical condition and the 12 weeks of unpaid
of employees. Nevertheless, even the basic task ofleave under both FMLA and NJFLA would run at the
tallying the number of employees working for asame time.ther issue that often occurs is whether an
private employer is complicated by provisions of theemployer may force an employee to use paid leave
leave laws that increase the number of employeestime concurrent with the unpaid leave provided for
attributed to an employer if it is shown that there isby FMLA and NJFLA. The short answer is yes - an
common management, ownership and control of aemployer may require you to take your paid time
subsidiary, division or entity related to the particularoff, i.e., sick and vacation time during your unpaid
employer.leave period. The principle here is that an employer
To be eligible for leave under the FMLA, an employeemust follow its past practice concerning exhaustion
must have worked for a specific employer for aof all accrued paid leave during a leave of absence. In
minimum of 12 months and worked 1,250 base hoursother words, the employer's practice must be
in the 12 months preceding the leave. Compare theconsistent for leave act purposes with its policy
NJFLA, which requires the same 12 monthabout using paid time off during other unpaid leave
employment period, but reduces the base hourperiods.
requirement to 1000 hours in the preceding 12For employees and employers alike, the FMLA and
months for leave eligibility. Calculating eligibility isNJFLA pose difficult legal and factual questions. At
likewise not always what it seems - the minimum 12risk for employers that mistakenly deny leave to an
month period of working for an employer does notemployee is litigation and potentially significant
have to be consecutive months of employment andmonetary penalties. At risk for employees that do
includes partial weeks worked, sick leave, vacationnot properly follow the leave act guidelines is loss of
time and other paid time off. Contrast the base hourmuch needed time off and termination from
requirement, which does not include vacation, sickemployment. For these reasons, it is imperative
leave or other personal leave toward thisemployers and employees consult with a legal
requirement.professional concerning the FMLA and NJFLA.
Under both FMLA and NJFLA, leave is available to