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Complying with the Family and Medical Leave Act and the New Jersey Family Leave Act: A Primer
April 21, 2015

Despite its adoption fourteen years ago, the Federal Family and Medical Leave Act (“FMLA”) still is not properly implemented by some public entities.

Despite its adoption fourteen years ago, the Federal Family and Medical Leave Act (“FMLA”) still is not properly implemented by some public entities.

Generally, the FMLA provides certain employee with up to twelve weeks of unpaid leave. While on FMLA, employers are required to continue to provide group health benefits and to keep the employee’s job available. The FMLA, however, if properly implemented, also protects the employer. After twelve weeks, and unless other statutes limit otherwise, such as the Americans with Disabilities Act, a municipality is not required to continue to pay for an employee’s health benefits or maintain a position open or available for the employee. The same is true under the New Jersey Family Leave Act (“NJFLA”). If the employer does not place the employee on leave, the employer may be prevented from terminating an employee after the twelve weeks.

The FMLA and NJFLA are similar but not the same. One of the major differences is that the NJFLA does not allow an employee to take medical leave when the employee him or herself is unable to work because of serious health condition. Another difference is that under the FMLA, an employee is eligible if he or she has worked for the employer at least 12 months and at least 1,250 hours within a 12-month period before the leave begins. NJFLA requires 1,000 hours of work with the employer. The FMLA provides twelve weeks of continuous leave during a 12 month period. Under NJFLA, the total amount of leave is the same, but the leave is provided over a 24-month period.

Normally, employees ask for FMLA or NJFLA leave. If this occurs, the employer has a limited period of time to respond based on the information received from the employee, or at the municipality’s option, after receiving additional information from a health care provider. What happens if an employee does not request leave? When that question is asked, it is commonly recommended that the employer send notice of the employee’s possible entitlement to FMLA, as well as NJFLA leave. The next question is, when does the employer send out the notice? It is recommended that notices be mailed by regular and certified mail, if the employee is out of work sick for more than five consecutive days. Some employers resist this recommendation, but it is important to note that it is the employer’s responsibility to provide information to the employee that he or she may be eligible for unpaid leave, if they qualify. If the employee provides proof of a serious health condition, it is the municipality’s responsibility to confirm in writing that the employee is on FMLA/NJFLA leave, in addition to providing other information.

When the employee does not respond, the next question received from employers is what do we do now? The employer should make another attempt to communicate with the employee regarding his or her rights under the FMLA/NJFLA. If no response is received, the municipality may then drop the issue, or in limited circumstances, the employer is advised to inform the employee that he or she is involuntarily being placed on leave.

Other common issues involve whether an employer can require an employee to utilize sick, vacation or personal time when they are on a leave of absence, or whether an employee can burn FMLA and/or NJFLA leave in conjunction with Worker’s Compensation and Disabilities leaves. New Jersey and Federal law allow the use of FMLA/NJFLA in conjunction with other leaves of absence; however, the employer is only permitted to require same if the employer has set the procedures forth in a written adopted employee policy. Without a specific policy, employers are very limited in what they can require; therefore, a well thought out policy is a must. A policy may also be used to limit employees from working for another employer while on FMLA and related other issues.

Another important factor that must be considered when dealing with FMLA/NJFLA is its interplay with the American With Disabilities Act, the Law Against Discrimination, etc. Most importantly, there can be interplay with reasonable accommodation requirement.

Since the adoption of the new New Jersey civic union law {statutory cite?], another layer of confusion has been added. The New Jersey legislature voted to allow civil unions in 2007. The law suggests that employers may be required to provide benefits to employees who have same sex partners, including not only health insurance benefits for the partner if the employer provides benefits to employees of opposite sex spouses, but, in addition, employers must also provide NJFLA leave to an employee to care for a same-sex partner that has a serious health condition.

It is important to note that there is much information about the NJFLA and FMLA that is not included herein. This article addresses some of the more common questions and issues. You should always consult with your human resource director and attorney on issues involving these laws.

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