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Rights of Employees under the
Family and Medical Leave Act of 1993
and New Jersey Family Leave Act


(From US Department of Labor Publication #1420, June 1993, and NJ Family Leave Act Web site)
See the FMLA Advisor page at the federal Department of Labor's Web site:
http://www.dol.gov/dol/topic/benefits-leave/fmla.htm
See the NJFLA information page at http://www.njcivilrights.com

The information below provides an overview of how the the federal Family and Medical Leave Act of 1993 (FMLA) and the New Jersey Family Leave Act (NJFLA) programs affect New Jersey employers and employees.

The federal FMLA and the State NJFLA offer covered employees up to 12 weeks of unpaid, job-protected leave for certain family and medical related reasons. While both laws provide substantially equivalent coverage, there are some differences that have been taken into consideration on this page. For more detailed information, connect to the federal Department of Labor's Web site at: http://www.dol.gov/dol/topic/benefits-leave/fmla.htm
or the State of New Jersey NJFLA Web site at:
http://www.njcivilrights.com

Eligible Employees

Employees are eligible if they have worked for a covered employer, with at least 50 employees, for at least one year and for at least 1,000 hours over the previous 12 months.

Covered Employers

  • A company with at least 50 employees for 20 or more weeks either this or last year; or
  • A governmental agency; or
  • A school.

Reasons for Taking Leave

Unpaid leave must be granted for any of the following reasons:

  • to care for the employee's child after birth, or placement with the employee of a son or daughter for adoption or foster care;
  • to care for the employee's spouse*, son or daughter, or parent, who has a serious health condition, or;
  • for a serious health condition that makes the employee unable to perform his or her job.

*Because civil unions are recognized in the State of New Jersey, the New Jersey Family Medical Leave Act will apply; that is, unpaid leave must also be granted to allow an employee to care for his/her civil union partner or eligible same-sex domestic partner who has a serious health condition.

NJFLA defines a "serious health condition" as an illness, injury, impairment, or physical or mental condition which requires:

1) inpatient care in a hospital, hospice, or residential medical care facility; or

2) continuing medical treatment or continuing supervision by a health care provider.

FMLA regulations similarly define what constitutes a "serious health condition."

At the employee's or employer's option, certain kinds of paid leave may be substituted for unpaid leave.

Note: The FMLA provides time off from work due to an employee's disability, while the NJFLA does not. Therefore, it may be possible to use FMLA covered time for disability without reducing NJFLA time in connection with the birth or adoption of a child or the serious illness of a parent, child or spouse.

Advance Notice and Medical Certification

The employee may be required to provide advance leave notice and medical certification. Taking of leave may be denied if requirements are not met. As a rule, the employee should give the employer enough information to allow him or her to understand that the leave is for an FMLA-qualifying reason.

  • The employee ordinarily must provide 30 days advance notice when the leave is "foreseeable."
  • An employer may require medical certification to support a request for leave because of a serious health condition, and may require second or third opinions (at the employer's expense) and a fitness for duty report to return to work.

Some Additional Requirements To Keep In Mind

  • The employee may choose, or the employer may require the employee, to use certain kinds of paid leave (such as accrued sick or vacation leave) during a NJFLA absence;
  • The employee may take NJFLA leave intermittently or work a reduced workweek when medically necessary for the employee's or family member's serious health condition. The leave may be taken as needed, such as a day at a time, or a week, or even a few hours;
  • The employer may not require the employee to see his or her health care provider for each FMLA absence for chronic serious health conditions or pregnancy.

Job Benefits and Protection

  • For the duration of NJFLA leave, the employer must maintain the employee's health coverage under any "group health plan," under the same terms as if the employee continued to work.
  • If the employee pays a share of medical premiums for health coverage, the employer and employee must decide how to accomplish this.
  • Upon return from NJFLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.
  • The use of NJFLA leave cannot result in a loss of any employment benefit that accrued prior to the start of an employee's leave.

Unlawful Acts by Employers

FMLA makes it unlawful for any employer to:

  • interfere with, restrain, or deny the exercise of any right provided under the NJFLA;
  • discharge or discriminate against any person for opposing any practice made unlawful by the NJFLA or for involvement in any proceeding under or relating to the NJFLA.

Enforcement

  • The US Department of Labor is authorized to investigate and resolve complaints of violations.
  • The NJ Division on Civil Rights is also authorized to investigate and resolve complaints of violations.
  • An eligible employee may bring a civil action against an employer for violations.

FMLA does not affect any federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement which provides greater family or medical leave rights.

To Read the Laws

For more information on the Family and Medical Leave Act, visit the Department of Labor's website at: http://www.dol.gov/dol/topic/benefits-leave/fmla.htm

The New Jersey Family Leave Act is outlined in the State statutes, New Jersey Statutes Annotated (NJSA) Title 34:11B-1 to 16.


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Last Updated: January 17, 2012