M any employers continue to express other times, the employees - PDF document

G Employment Law Alert December 1998 Family Medical Leave Under Federal and New Jersey Law By: Martha L. Lester, Esq. and Julie Levinson Werner, Esq. M any employers continue to express other times, the employee’s federal and state concern about compliance with both protected leave may be cumulative, in which case the federal Family Medical Leave Act the employee may be entitled to up to 24 weeks of (“FMLA”) and New Jersey’s Family Leave Act unpaid leave. This Employment Law Alert (“FLA”) (collectively, the “Acts”). Although the contains some general information which you Acts have been in effect for several years, there is should know about the Acts, and how they impact still some confusion as to how and when they are to one another. In addition, we have provided some be applied. First, you should determine whether working examples to assist you in applying the you have the sufficient number of employees in requirements of the Acts to factual work place your work place to be covered by the Acts. If so, it situations. is essential to have a policy in place which clearly Federal Family Medical Leave Act of articulates to your employees how they may apply 1993 (“FMLA”) for family or medical leave, if they are eligible, and To be eligible for leave under the federal FMLA, the guidelines surrounding that leave. In this an employee must have been employed by the regard, it is important to have the requisite forms to employer for at least 12 months and for at least guide you and your employees when an employee 1,250 hours during the preceding 12 months. applies for leave, provides a medical certification, Additionally, the employee must be employed at a and advises you that he or she intends to return to work site which employs a minimum of 50 work, or not return to work, as the case may be. In employees who work 20 or more calendar addition, you should be aware that in some workweeks within a 75-mile radius of the work site. circumstances, the Acts run concurrently, and at Eligible employees are entitled to take a maximum This document is published by Lowenstein Sandler PC to keep clients and friends informed about current issues. It is intended to provide general information only. L Roseland, New Jersey Telephone 973.597.2500 65 Livingston Avenue www.lowenstein.com 07068-1791 Fax 973.597.2400

G of 12 weeks unpaid leave during a 12 month the duration of the leave. Employees may also be period for the following reasons: required to provide additional physician’s (1) the birth of the employee’s child and in statements at the employer’s request at reasonable order to care for the child; intervals. During a period of family or medical (2) the placement of a child with the employee leave, the employee must be retained on the for adoption or foster care; employer’s health plan under the same conditions (3) to care for a spouse, child or parent who has that applied before leave commenced. a serious health condition; or New Jersey Family Leave Act (“FLA”) (4) a serious health condition that renders the To be eligible for leave under the New Jersey employee incapable of performing the FLA, an employee must have been employed by functions of his or her job. the same employer in the State of New Jersey for at Under FMLA, eligible employees are entitled least 12 months and for at least 1,000 hours during on return from leave to be reinstated to their the preceding 12 months. An employee is former position or an equivalent position with employed in the State of New Jersey if he/she equivalent employment benefits, pay, and other works in New Jersey or the employee routinely terms and conditions of employment. Exceptions performs some work in New Jersey and the to this requirement may apply if business employee’s base of operations or the place from circumstances have changed (e.g. if the which such work is directed and controlled is in employee’s position is no longer available due to a New Jersey. Additionally, the employee must be job elimination) and certain high level employees employed at a work site which has employed a may be exempted from coverage. A “Medical minimum of 50 employees (whether employed in Certification Statement” may be required when New Jersey or not) for 20 or more calendar work an employee applies for leave based on the serious weeks during the current or immediately preceding health condition of the employee or the calendar year. New Jersey law provides for 12 employee’s spouse, child or parent. In the weeks of leave within any 24 month period for: Certification, the physician will be asked to attest (1) the birth or adoption of a child; or to the nature of the serious health condition, and

G (2) the serious health condition of a child, care for his own medical condition under federal parent or spouse. and state law, because New Jersey’s FLA does not Eligible employees will be entitled to leave if the provide leave to care for one’s own serious health conditions under either the federal or state law are condition. met, subject to the requirements of whichever In yet a third hypothetical, if an employee takes statute applies. If the leave qualifies under both 12 weeks to care for a child, parent, or spouse, Acts, the leave used counts concurrently against under FMLA, that employee may not take an the employee’s entitlement under each law. The additional 12 weeks under FLA to continue to care best way to explain this is by way of example. for that child, parent or spouse. Because both Acts Assume a female employee is pregnant and provide for leave to care for a family member, the wishes to take pregnancy disability leave. She leave would apply concurrently under the federal make take up to 12 weeks of leave under the and State law and the employee would be entitled FMLA to do so. New Jersey law does not provide only to a total of 12 weeks of leave. an individual with leave to care for her own Finally, if an employee were to adopt a child and serious health condition, so her 12 weeks taken take 12 weeks under the FMLA to attend to the under FMLA to care for herself would not limit adoption process and to spend time with the child her ability to take leave under the FLA. Thus, when the child was first adopted, he would also be under the FLA, she is entitled to an additional 12 permitted to take another 12 weeks of protected weeks to care for her newborn child. Accordingly, leave under the FLA if his adopted child were to she may take a total of 24 weeks of unpaid leave. suffer from a serious health condition. In another instance, an employee with a serious Accordingly, the employee’s position would be health condition might wish to take leave to care protected for a total of 24 weeks. for his medical condition. He could take 12 weeks Given today’s climate in which more and more to care for himself under the FMLA, and an employees are requesting family and/or medical additional 12 weeks under the FLA to attend to leave, your company’s compliance with both the the serious health condition of a child, parent, or FMLA and FLA is essential. And, since each state spouse. However, he could not take 24 weeks to where you do business may have an equivalent

G leave law, it is important that you familiarize yourself with its provisions since you will be obligated to provide the benefits of both the FMLA and the applicable state law to your employees. You should also be aware that in any event, the “protected leave clock” begins to run only after the requisite notice has been provided to the employee that his or her leave has been designated as family or medical leave under whichever of the Acts as is appropriate. Leave under the Acts cannot be applied retroactively, except under very limited circumstances. Accordingly, your delay may permit an employee to a longer leave than is contemplated under the Acts. If you are concerned whether your work place is in compliance with these laws, please call Martha L. Lester, Chair of the Employment Law Practice Group, or Julie Levinson Werner, a member of the Employment Law Practice Group, at (973) 597-2500. We would also be pleased to provide you with advice respecting your other employment practices and work place compliance issues.