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Employment Law Alert

December 1998

Family Medical Leave Under Federal and New Jersey Law

By: Martha L. Lester, Esq. and Julie Levinson Werner, Esq.

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any employers continue to express concern about compliance with both the federal Family Medical Leave Act (“FMLA”) and New Jersey’s Family Leave Act (“FLA”) (collectively, the “Acts”). Although the Acts have been in effect for several years, there is still some confusion as to how and when they are to be applied. First, you should determine whether you have the sufficient number of employees in your work place to be covered by the Acts. If so, it is essential to have a policy in place which clearly articulates to your employees how they may apply for family or medical leave, if they are eligible, and the guidelines surrounding that leave. In this regard, it is important to have the requisite forms to guide you and your employees when an employee applies for leave, provides a medical certification, and advises you that he or she intends to return to work, or not return to work, as the case may be. In addition, you should be aware that in some circumstances, the Acts run concurrently, and at

• ther times, the employee’s federal and state

protected leave may be cumulative, in which case the employee may be entitled to up to 24 weeks of unpaid leave. This Employment Law Alert contains some general information which you should know about the Acts, and how they impact

• ne another. In addition, we have provided some

working examples to assist you in applying the requirements of the Acts to factual work place situations.

Federal Family Medical Leave Act of 1993 (“FMLA”)

To be eligible for leave under the federal FMLA, an employee must have been employed by the employer for at least 12 months and for at least 1,250 hours during the preceding 12 months. Additionally, the employee must be employed at a work site which employs a minimum of 50 employees who work 20 or more calendar workweeks within a 75-mile radius of the work site. Eligible employees are entitled to take a maximum

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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. 65 Livingston Avenue www.lowenstein.com

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Roseland, New Jersey 07068-1791 Telephone 973.597.2500 Fax 973.597.2400

• f 12 weeks unpaid leave during a 12 month

period for the following reasons: (1) the birth of the employee’s child and in

• rder to care for the child;

(2) the placement of a child with the employee for adoption or foster care; (3) to care for a spouse, child or parent who has a serious health condition; or (4) a serious health condition that renders the employee incapable of performing the functions of his or her job. Under FMLA, eligible employees are entitled

• n return from leave to be reinstated to their

former position or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. Exceptions to this requirement may apply if business circumstances have changed (e.g. if the employee’s position is no longer available due to a job elimination) and certain high level employees may be exempted from coverage. A “Medical Certification Statement” may be required when an employee applies for leave based on the serious health condition of the employee or the employee’s spouse, child or parent. In the Certification, the physician will be asked to attest to the nature of the serious health condition, and the duration of the leave. Employees may also be required to provide additional physician’s statements at the employer’s request at reasonable

• intervals. During a period of family or medical

leave, the employee must be retained on the employer’s health plan under the same conditions that applied before leave commenced.

New Jersey Family Leave Act (“FLA”)

To be eligible for leave under the New Jersey FLA, an employee must have been employed by the same employer in the State of New Jersey for at least 12 months and for at least 1,000 hours during the preceding 12 months. An employee is employed in the State of New Jersey if he/she works in New Jersey or the employee routinely performs some work in New Jersey and the employee’s base of operations or the place from which such work is directed and controlled is in New Jersey. Additionally, the employee must be employed at a work site which has employed a minimum of 50 employees (whether employed in New Jersey or not) for 20 or more calendar work weeks during the current or immediately preceding calendar year. New Jersey law provides for 12 weeks of leave within any 24 month period for: (1) the birth or adoption of a child; or

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(2) the serious health condition of a child, parent or spouse. Eligible employees will be entitled to leave if the conditions under either the federal or state law are met, subject to the requirements of whichever statute applies. If the leave qualifies under both Acts, the leave used counts concurrently against the employee’s entitlement under each law. The best way to explain this is by way of example. Assume a female employee is pregnant and wishes to take pregnancy disability leave. She make take up to 12 weeks of leave under the FMLA to do so. New Jersey law does not provide an individual with leave to care for her own serious health condition, so her 12 weeks taken under FMLA to care for herself would not limit her ability to take leave under the FLA. Thus, under the FLA, she is entitled to an additional 12 weeks to care for her newborn child. Accordingly, she may take a total of 24 weeks of unpaid leave. In another instance, an employee with a serious health condition might wish to take leave to care for his medical condition. He could take 12 weeks to care for himself under the FMLA, and an additional 12 weeks under the FLA to attend to the serious health condition of a child, parent, or

• spouse. However, he could not take 24 weeks to

care for his own medical condition under federal and state law, because New Jersey’s FLA does not provide leave to care for one’s own serious health condition. In yet a third hypothetical, if an employee takes 12 weeks to care for a child, parent, or spouse, under FMLA, that employee may not take an additional 12 weeks under FLA to continue to care for that child, parent or spouse. Because both Acts provide for leave to care for a family member, the leave would apply concurrently under the federal and State law and the employee would be entitled

• nly to a total of 12 weeks of leave.

Finally, if an employee were to adopt a child and take 12 weeks under the FMLA to attend to the adoption process and to spend time with the child when the child was first adopted, he would also be permitted to take another 12 weeks of protected leave under the FLA if his adopted child were to suffer from a serious health condition. Accordingly, the employee’s position would be protected for a total of 24 weeks. Given today’s climate in which more and more employees are requesting family and/or medical leave, your company’s compliance with both the FMLA and FLA is essential. And, since each state where you do business may have an equivalent

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leave law, it is important that you familiarize yourself with its provisions since you will be

• bligated 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

• nly 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,

• r 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.

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