As an employee working in the State of New Jersey, no doubt you have heard co-workers, friends or family mention “family leave” or the “family medical leave act.” These phrases reference two separate laws that benefit many people working in this State – the Family Medical Leave Act (“FMLA”), which is a federal law, and the New Jersey Family Leave Act (“NJFLA”), which you likely guessed is a state law. Fundamentally, these laws provide unpaid leave periods during which a qualifying employee’s job as well as certain benefits are protected. For non-military employees, an employee may be entitled to a benefit of 12 weeks unpaid leave in a 12 month period under the FMLA and 12 weeks of unpaid leave in a 24 month period under the NJFLA. The concept under both laws is to place an employee in the same job position after family leave expires.

On the surface, these laws seem relatively straightforward regarding the benefits provided. In practice, however, issues such as whether a particular employee is entitled to leave, calculation of the leave period and simultaneous running of leave periods under both FMLA and NJFLA frequently arise. Given the not so obvious pitfalls that surround application of these laws, employers often simply do not know the law or worse, believe, incorrectly, that they fully comprehend the intricacies of the leave acts, both of which lead to misapplication of the law.

In general, the FMLA and NJFLA apply to all private employers with 50 or more employees and all public and governmental agencies regardless of the number of employees. Nevertheless, even the basic task of tallying the number of employees working for a private employer is complicated by provisions of the leave laws that increase the number of employees attributed to an employer if it is shown that there is common management, ownership and control of a subsidiary, division or entity related to the particular employer.

To be eligible for leave under the FMLA, an employee must have worked for a specific employer for a minimum of 12 months and worked 1,250 base hours in the 12 months preceding the leave. Compare the NJFLA, which requires the same 12 month employment period, but reduces the base hour requirement to 1000 hours in the preceding 12 months for leave eligibility. Calculating eligibility is likewise not always what it seems – the minimum 12 month period of working for an employer does not have to be consecutive months of employment and includes partial weeks worked, sick leave, vacation time and other paid time off. Contrast the base hour requirement, which does not include vacation, sick leave or other personal leave toward this requirement.

Under both FMLA and NJFLA, leave is available to eligible employees for the birth or adoption of a child and to care for the serious medical condition of a close family member (generally a parent, spouse or child). Unlike NJFLA, the FMLA expands leave to cover an employee’s own serious medical condition. A serious medical condition is generally defined as an illness, injury, impairment or physical or medical condition, which requires in-patient care or continuing treatment from a health care provider. Issues triggered by the definition of serious medical condition include overlap with an employee’s privacy protection in his or her medical records and permissible communications an employer may have with an employee’s medical professionals. Moreover, in certain circumstances, cosmetic or elective surgery may qualify as a serious medical condition as well as the treatment for alcohol or substance abuse as opposed to absences caused by the use of alcohol or drugs.

Given that the leave provided for under FMLA and NJFLA may cover the same event, simultaneous running of leave under both acts must frequently be determined. For example, an individual injured at work whom is unable to work for 12 weeks due to his or her own disability, would exhaust the 12 weeks of unpaid leave under FMLA. If, on the final day of the employee’s own disability, his or her spouse is seriously injured in a motor vehicle accident, the employee is then entitled to 12 weeks unpaid leave under NJFLA. Contrast, however, a situation where an employee must provide care to a child for a serious medical condition and the 12 weeks of unpaid leave under both FMLA and NJFLA would run at the same time.

ther issue that often occurs is whether an employer may force an employee to use paid leave time concurrent with the unpaid leave provided for by FMLA and NJFLA. The short answer is yes – an employer may require you to take your paid time off, i.e., sick and vacation time during your unpaid leave period. The principle here is that an employer must follow its past practice concerning exhaustion of all accrued paid leave during a leave of absence. In other words, the employer’s practice must be consistent for leave act purposes with its policy about using paid time off during other unpaid leave periods.

For employees and employers alike, the FMLA and NJFLA pose difficult legal and factual questions. At risk for employers that mistakenly deny leave to an employee is litigation and potentially significant monetary penalties. At risk for employees that do not properly follow the leave act guidelines is loss of much needed time off and termination from employment. For these reasons, it is imperative employers and employees consult with a legal professional concerning the FMLA and NJFLA.

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