The combined effect of the federal Family and Medical Leave Act, 29 U.S.C. §2601 et seq. (FMLA) and the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 et seq. (FLA) has left many New Jersey employers in a state of complete and utter confusion. In addition to the uncertainty that arises in considering the interplay between the two acts, employers also must consider whether their workforce is entitled to benefits under internal personnel policies, private and state disability insurance, collective bargaining agreements, workers compensation or other statutes.
Employers with 50 or more employees in a 75-mile radius who "affect commerce" are subject to the federal law. Employers with 50 or more employees (regardless of location) are subject to the state statute. Generally, employees subject to FMLA and FLA are those who have worked for an employer for 1,250 and 1,000 hours, respectively, during the previous 12 months. Under FMLA, an eligible employee is entitled to 12 weeks of unpaid leave in a 12-month period for the birth of a child, to care for a newborn, for the placement of an adopted child, to care for a seriously ill spouse, child or parent, or to care for one's own "serious health condition." Under FLA, an employee may take 12 weeks of unpaid leave during a 24-month period for the same qualifying events as provided by FMLA except FLA does not cover an employee for his or her own illness.
In analyzing both statutes, employers tend to hurt themselves in two distinct areas: first, by failing to recognize an absence as a "family or medical leave" under the acts and, second, by failing to give employees the required leave notice once the leave is properly recognized. To ensure they are protecting their rights under these statutes, employers should become familiar with certain aspects of FMLA and FLA regarding notice.
Employers and their human resources personnel must be trained to recognize whether a leave request qualifies under FMLA or FLA. An employee requesting a leave for a circumstance specified in either or both acts need not specifically mention the FMLA or FLA. Rather, it is the employer's responsibility to recognize the request as qualifying or if more information is needed, to inquire further about whether a leave request qualifies. Once an employee notifies the employer of the need for a qualifying leave, it is up to the employer to designate under which law the leave qualifies and notify the employee of its action.
While an employer ordinarily must designate the leave as it begins, if the employer does not know the qualifying basis until after the leave begins, the employer may make a retroactive designation as FMLA or FLA within two business days after the employer learns the qualifying circumstances. If the employer does not learn the basis until after the employee returns to work, or is awaiting a medical certification, the designation must be made within two business days of the employee's return. In sum, it is in an employer's best interest to review all leave requests carefully.
Once an employer receives a leave request, it must ensure it satisfies its individual notice requirements. Under FMLA, an employer must inform the employee in writing that it is designating the leave under FMLA within two business days of receipt of the request. Although FLA does not contain a comparable provision, employers are well advised to provide prompt written notice to the employee indicating the time off will be drawing down the employee's FLA entitlement.
The notice requirement should indicate that (1) the leave is designated FMLA and/or FLA leave, (2) any requirement for the employee to provide a medical certification, (3) the right to substitute paid leave and whether such substitution is required by the employer, (4) any requirement that the employee make health benefit premium contributions, and (5) that (except for certain highly paid employees) the employee is entitled to the same or at least equivalent position upon expiration of the leave.
In addition to the required individual notification, both acts require employers to post notices that apprise employees of their rights and obligations under the acts. The notices must be posted in a conspicuous place. Where a large section of an employer's workforce does not speak English, the employer must publish the notice in the language the employees understand. Employers who violate this requirement may be assessed a civil money penalty. Moreover, employers should include a discussion of the acts' provisions in any employee handbook or other personnel policy manual or handout.
This article is reprinted with permission from the December 3, 2001 issue of New Jersey Lawyer
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