Certain employers under this law are required to provide employees with the opportunity to take leave from the company. Employees who qualify may take family leave for a period of no more than 12 weeks within 24 months. Family leave is often taken when a worker is pregnant, but can also be taken to take care of a sick child or parent who is in the hospital or has a serious, chronic health condition. The leave does not have to be paid by the company, but it must nonetheless be given if the employee qualifies. This article will discuss the applicability of the Act, along with options you may consider when taking leave.
Basic Qualification Requirements
The FMLA applies only to employers with 50 or more employees. This exception does not apply to public agencies, which are covered under the FMLA regardless of the number of employees they employ. Schools, whether public or private and elementary or secondary, are treated as public agencies and fall under this exception. The FMLA also applies to employees who have been employed by the same employer for 12 months or more, and during the previous 12 months, worked a minimum of 1,000 hours. Assuming a 40-hour workweek, the employee would have worked 25 weeks with the employer.
What Situations Invoke the FMLA?
There are four different situations where you can receive protection under the FMLA:
- For the birth of the employee’s child or to care for the newborn
- For the adoption or foster care of the employee’s son or daughter
- To care for an employee’s child, parent, or spouse with a serious health condition
- The employee’s own serious health condition renders him unable to perform necessary job functions.
New Jersey state regulations define the term “serious health condition” as a physical or mental ailment that requires either inpatient hospital treatment or continued medical treatment or supervision by a health care provider. So, for example, say an employee’s child gets pregnant and becomes incapacitated as a result, the employee can request FMLA, so he/she be available to the child. One of our clients is a school that employs a teacher whose child has special needs, and the teacher is arriving late on certain days so she can bring her child to a special needs school. Since the school serves special needs students and has on staff a medical professional (school nurse) to care for children, an argument can be made that the FMLA applies to the employee, thereby allowing the mother to bring her child to the school, resulting in late days per week.
Is Taking FMLA a One-Shot Deal, or Can it be Broken Up?
The short answer here is that it can be broken up if your leave lasts less than the full time granted to you under the Act. You are allowed to use the remaining leave if you need it. You are also allowed to take intermittent or reduced leave. Under an intermittent leave schedule, you take leave in separate intervals throughout the workweek. If you wish to work part-time instead of full-time or work fewer days of the week, you may also ask for a reduced leave schedule. Communicating with your employer about what needs to be done and how you should take leave is critical.
In our earlier case, the teacher sought intermittent leave of 20-30 minutes in the mornings when she is dropping her child off at school. Interestingly, the issue of whether chronic lateness can qualify for FMLA has been a subject of debate between the different federal courts. A federal district court in Maine ruled that chronic lateness that requires leave for the duration of the lateness is not covered under the FMLA, no matter if there is a medical condition or not, stating that this leave “trivializes the purpose of the Act.” Another federal court in Illinois disagreed with the Maine court, stating that the FMLA was meant for medical conditions and that an absence resulting in some lateness in the morning with little notice is considered covered under the FMLA. No court in New Jersey has ruled on this issue, but you can see the disagreement among courts.
What Are My Responsibilities as an Employee?
Employees are required by law and regulations to provide 30 days’ advance notice before taking leave. Employees are also required to make a reasonable effort to schedule leave so as not to “unduly disrupt” the employer’s operations. Employers may be required to provide you with leave, but you need to work with them so you do not hurt them. Taking leave when you are needed the most is not a wise idea, not only legally but also practically for your career and opportunities to advance in the company.
One way companies and employees can work together to ensure the employee can take leave without it being a major hindrance to the company is to temporarily transfer the employee to a different position until the need for FMLA goes away. The law, however, requires that this new position have the same pay and benefits as the current position, and the transfer is not intended to be a hardship on the employee taking the leave, to discourage him or her from using it.
To discuss your NJ Employment Law matter, please contact Fredrick P. Niemann, Esq. at (732) 863-9900 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.
Fredrick P. Niemann Esq.
NJ Employment Law Attorney serving these New Jersey Counties:
Monmouth County, Ocean County, Essex County, Cape May County, Camden County, Mercer County, Middlesex County,
Bergen County, Morris County, Burlington County, Union County, Somerset County, Hudson County, Passaic County