Articles Posted in FMLA Discrimination

New Jersey employment laws at both the state and federal levels protect the rights of employees to take time off from work for certain reasons. These include medical issues affecting themselves or family members. Employers must allow workers to return to their jobs, or a substantially similar job with the same pay and benefits, at the end of their authorized leave. New Jersey provides paid leave for personal or family medical issues. The federal Family and Medical Leave Act (FMLA) provides up to twelve weeks of unpaid leave for similar reasons. Employees must work for a covered employer and meet eligibility requirements in order to take protected FMLA leave. The U.S. Department of Labor (DOL) recently issued an updated poster that covered employers must display in the workplace. The poster outlines employees’ rights and employers’ obligations under the statute.

Family leave is available to New Jersey workers through state law as a form of insurance. Covered employers fund the system through payroll taxes. To be eligible, a worker must have worked the minimum number of hours necessary to pay into the program. Eligible workers in New Jersey may be able to take up to:
– 26 weeks of medical leave for non-work-related injuries or illnesses;
– 12 weeks of family leave to care for a family member;
– 12 weeks of family leave for a new parent to bond with a newborn infant or newly adopted or fostered child within one year of the child’s arrival; or
– 12 weeks of family leave for a new mother to bond with her infant, as well as 26 weeks of temporary disability leave before and after the birth.
The amount of pay workers may receive while on leave is equal to 85% of their average weekly pay or $1,025 per week, whichever amount is smaller. Unpaid leave with job protection is also available under state law.

The benefits offered by the FMLA are simpler than those provided by New Jersey law. Eligible employees may take up to twelve weeks of unpaid leave for:
– A new child, whether by birth, adoption, or foster placement;
– A serious illness or injury that prevents an individual from working;
– A close family member’s serious illness or injury; or
– Issues related to the military deployment of a close family member.
The eligibility rules for FMLA leave, on the other hand, are quite complicated. An employee must work for a covered employer, and they must meet minimum requirements for the number of hours worked.
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New Jersey employment laws provide eligible workers with protected leave to deal with medical issues or care for family members. The federal Family and Medical Leave Act (FMLA) provides up to twelve weeks of unpaid leave for certain reasons. In order to qualify for leave under this statute, an employee must work for a covered employer and meet minimum work-hour requirements. An increasing number of workers in New Jersey and around the country are working remotely, which has raised questions about how the FMLA applies. The Wage and Hour Division (WHD) of the U.S. Department of Labor issued guidance in February 2023 addressing this and several other questions. Its position is that the FMLA’s protections apply to remote workers in much the same way that they would be available to on-site employees. It offers some clarifications on how eligibility criteria relating to an employee’s “worksite” apply to remote workers.

Eligibility for FMLA leave is complicated. The statute establishes criteria for the employer, the employee, and the purpose of the requested leave. It applies to employers with at least fifty employees. An employee must meet the following three criteria:
1. They have worked for the employer for at least twelve months. For this criterion, the twelve months do not need to be consecutive.
2. During the twelve-month period immediately before the employee requests leave, they have worked a minimum of 1,250 hours.
3. Their employer employs at least fifty people within seventy-five miles of their worksite.

Reasons for leave under the FMLA may include the following:
– A serious health condition that prevents an employee from performing their job;
– The birth, adoption, or foster placement of a child;
– A serious health condition of a spouse, child, or parent; or
– A “qualifying exigency” related to the active-duty military service of a spouse, child, or parent.
Employers violate the FMLA when they interfere with an eligible employee’s effort to use accrued leave time or discriminate against an employee because they requested or used leave. They must allow employees to return to the same position or a substantially similar position when their leave ends, with the same pay and benefits.
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The COVID-19 pandemic has had a devastating effect on New Jersey’s employment landscape for more than a year. Congress passed several bills in 2020 intended to help people impacted by the pandemic, both medically and economically. The Families First Coronavirus Response Act (FFCRA), which became law in March 2020, provided paid sick leave and paid and unpaid family leave for people who were either directly affected by the virus, or who were caring for one or more affected family members. These provisions expired at the end of 2020. The American Rescue Plan Act (ARPA) became law in March 2021, and includes extensions and expansions of both family leave and paid sick leave.

The FFCRA created a new federal system for paid sick leave, and expanded the provisions for leave under the Family and Medical Leave Act (FMLA). The law required most employers with fewer than five hundred employees to provide emergency paid sick leave (EPSL) to workers who could not come to work, in person or virtually, for reasons related to the COVID-19 pandemic, including
– Quarantine on the orders of a government official, or the recommendation of a doctor;
– Symptoms of COVID-19;
– Caring for a family or household members who is subject to a quarantine order or recommendation; or
– Caring for a child whose school was closed due to the pandemic.

EPSL covered an employee’s regular rate of pay, up to a maximum of either $511 per day or $5,110 total. Employees could take up to eighty hours of paid leave. Employers received a credit against the Social Security portion of their payroll taxes for paid leave provided to their employees.
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On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) became law. This bill is not as comprehensive as other bills that Congress has passed in response to the global COVID-19 pandemic, but it has some of the most important provisions affecting employment law. New Jersey employment law provides paid sick leave for workers and is one of few states to do so. The FFCRA establishes a temporary nationwide system of paid sick leave. It also temporarily expands the unpaid leave that is available under the federal Family and Medical Leave Act (FMLA). These provisions have several important limitations, including the total exclusion of employers with five hundred or more employees. A new temporary rule from the Department of Labor’s Wage and Hour Division (WHD) limits some workers’ ability to enforce their rights under the system of expanded FMLA leave.

FMLA Enforcement at Normal Times

The FMLA applies to employers with fifty or more employees, and employees who have worked at least 1,250 hours during the previous twelve months. In any twelve-month period, an eligible worker may take up to twelve weeks of unpaid leave for certain purposes, including a “serious health condition” and the need to care for a family member with such a condition.

Employers may not interfere with an eligible employee’s use of authorized leave, nor may they retaliate against an employee for taking leave. The employee’s job is protected during their leave. Employees may file a civil lawsuit against an employer who violates these provisions, and may recover damages including lost wages and benefits.

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The Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to twelve weeks of unpaid leave. It is the only federal statute that provides medical leave nationwide, and it only provides unpaid leave. New Jersey is one of five U.S. states, plus the District of Columbia, to provide paid leave for new parents and for certain other purposes. The U.S. Department of Labor (DOL) revised its guidance on the accrual of FMLA leave by employees in an opinion letter released in March 2019. This guidance bars employers from delaying the designation of accrued leave as FMLA leave. It might also affect how and when employees can take leave under the FMLA or another program. If you need to take paid leave and wonder if doing so is permissible under state law, you should reach out to a New Jersey employment law attorney at your earliest convenience.

Employers with at least fifty employees must provide FMLA leave. 29 U.S.C. § 2611(4)(A). In order to be eligible, employees must have worked for the employer for at least one year, and they must have actually worked at least 1,250 hours during that time. Id. at § 2611(2). Unpaid leave is available for up to twelve weeks per twelve-month period, for reasons like the birth or adoption of a child, serious illness or injury, or caring for an ill or injured family member. Id. at § 2612(a)(1).

If an employer provides paid leave to its own employees, but the total amount of leave available under the program is less than twelve weeks, the FMLA only requires that employer to provide enough unpaid leave to bring the total amount of leave to twelve weeks. Id. at § 2612(d). For example, if an employer provides six weeks of paid family leave, the FMLA would only require it to provide an additional six weeks of unpaid leave.

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