As soon as an employee in New Jersey requests a leave of absence for medical reasons, several federal and state laws may be triggered. Since compliance with one law does not guarantee compliance with all, employers need to be aware of what they can and cannot do under each law. Below is a summary of each law and some key points employers should keep in mind. While each law requires a slightly different approach, the importance of timing is a common theme.
The Family and Medical Leave Act (FMLA)
The FMLA mandates 12 weeks of job-protected, unpaid leave in a 12-month period for an employee's own serious medical condition, a family member's serious health condition, childbirth and newborn child care, or military obligations. The FMLA applies to employers with 50 or more employees within a 75-mile radius. Unlike some employment statutes, the FMLA allows employees to sue for both intentional and unintentional violations, narrowing the margin of error for employers.
• Eligibility. Employees can take FMLA leave as soon as they have worked for 12 months and have accrued 1,250 hours of work in the past 12 months. Employers should be careful about what they tell employees about their FMLA status. Ineligible employees may gain legal protections if they are mistakenly told that their leave will be FMLA protected.
• Notice and Scheduling of Leave. For foreseeable leaves such as scheduled medical treatment, employees must provide at least 30 days advance notice, and must work with the employer to schedule leave so as to minimize disruptions to the employer's operations. For unforeseeable leaves, notice must be given as soon as practicable. Employers can require employees to follow their usual and customary leave policies, such as written notice requirements, but these policies should include exceptions for medical emergencies.
• Initial Written Notices. Within five business days after learning that an employee may need FMLA leave, the employer must provide an eligibility notice stating whether or not the employee is eligible for FMLA leave, and a rights and responsibilities notice containing specific information about the FMLA process. Employers can create their own forms, or use the forms available on the Department of Labor's website. To avoid disputes about receipt, employers should use a delivery method that includes return receipt or delivery tracking, such as certified mail or email with read receipt.
• The Medical Certification. The medical provider certification is the linchpin of the FMLA process. While the certification is not mandatory, many employers use it to verify the reason for the leave. Generally, employers should request the certification form at the same time the eligibility notice is sent out, and must provide employees with at least 15 calendar days to complete it. If the employee returns the form with information missing, or the information provided is unclear, the employee must be given seven calendar days to cure the deficiency.
If the employer doubts the validity of the certification, it can require the employee to seek a second opinion. An employer can also contact the health-care provider who completed the certification, but only for the limited purpose of clarifying an unclear certification or confirming that the provider completed it. Depending on the length of the qualifying medical condition, the employer can request recertification during the leave. While these methods can help reduce employee leave abuse, the FMLA limits how and when each method can be used.
• Designation Notice. Once the employer has enough information to determine whether or not the leave qualifies under the FMLA, the employer has five days to provide the employee with a written designation notice stating whether or not the leave is approved. If approved, the notice should address the time frame of the leave, use of paid time off during leave, and return-to-work procedures. To prevent the accumulation of excessive leave time, many employers require that employees use all available paid time off during FMLA leave.
• Reinstatement. At the conclusion of FMLA leave, an employee must be returned to his or her position, or a position that is virtually identical in terms of pay, benefits, working conditions and duties. An employee has no right to reinstatement if the employer can show that the employee would have been terminated during the leave (for example, as part of a layoff or reorganization).
• Fitness for Duty.Employees who are absent due to their own serious health condition can be required to submit a fitness-for-duty certification from their medical provider before returning to work. Employers must consistently apply this policy to all similarly-situated employees with similar health conditions, and must notify employees about this requirement in the designation notice.
The NJ Family Leave Act (FLA)
Like the FMLA, the FLA provides New Jersey employees with a fixed amount of job-protected, unpaid leave. However, there are some key differences between the FMLA and the FLA:
The FLA applies to all employers with at least 50 employees nationwide;
The FLA can be used only to care for a family member with a serious health condition, or to care for a newly born or adopted child (not for the employee's own medical condition);
Employees are entitled to FLA leave after working for 12 months, and 1,000 hours during the past year; and
The FLA provides for 12 weeks of leave in a 24-month period.
When an employee takes a leave to care for a family member, the employee's FMLA leave and FLA leave entitlements will run at the same time. However, FMLA and FLA leave can be taken separately if used for different purposes. For example, if an employee takes a full 12 weeks of FMLA leave for his own serious medical condition, he could still be eligible for an additional 12 weeks of FLA leave to care for a newborn child later that same year.
The NJ Law Against Discrimination (LAD)
The LAD protects employees from discrimination based on a number of protected categories, including disability. Unlike the FMLA and that FLA, the LAD applies to all New Jersey employers regardless of size. When dealing with leaves of absence, the LAD can come into play in several ways:
• Leave as an Accommodation. Similar to the Americans with Disabilities Act (ADA), the LAD may require an employer to provide a disabled employee with an unpaid leave of absence as a reasonable accommodation. The LAD's definition of disability is broader than the ADA, and includes any "physical disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect or illness," as well as certain mental, psychological and developmental disabilities.
The disability accommodations process is more fluid than the FMLA process. The employer and employee must engage in an interactive process to determine an accommodation that addresses the employee's limitations. Since an employee cannot demand an accommodation of her choice, there may be alternatives to a leave of absence (such as workplace accommodations or job reassignment) that satisfy the employer's obligations. Employers are not required to grant leaves of absence that would cause an undue hardship. For example, employers are not required to accommodate chronic absenteeism, or grant indefinite or excessive leaves of absence. However, employers should always document the interactive process and their efforts to provide reasonable accommodations.
• Return to Work. Under the FMLA, employees must be able to perform all essential functions of their jobs before returning to work. However, if the returning employee is disabled under the LAD, and can potentially return to work with an accommodation, the employer must engage in the interactive process.
• Pregnancy. The LAD does not require leaves of absence for pregnant employees. However, employers must provide pregnant employees with at least as much paid or unpaid leave as provided to nonpregnant employees with similar abilities. To reduce risk of discrimination claims in general, employers should follow their leave of absence policies as consistently as possible when dealing with similarly situated employees.
New Jersey's Workers' Compensation Law does not mandate leaves of absence for employees injured at work. However, some employees seeking workers' compensation may have a serious medical condition under the FMLA as a result of their injuries. If so, the employer should follow the FMLA process and designate the appropriate absences toward the employee's 12 weeks of job-protected leave. In addition, because employees who file or attempt to file workers' compensation claims are protected from retaliation, it can be risky to terminate an employee who has recently made a claim or reported a workplace injury.
Paid Sick Leave
Over the past several years, paid sick leave and family leave has become a hot issue in New Jersey and nationwide. Currently, nine New Jersey municipalities, including Jersey City, Newark and Trenton, have paid sick leave ordinances. Philadelphia also has an employee-friendly paid leave ordinance. A statewide paid sick leave bill is currently pending in the New Jersey Assembly and Senate, where it has already been the subject of vigorous debate. Paid sick leave continues to be an issue to watch going forward.
When dealing with employee leaves of absence, New Jersey employers must identify the various laws that apply, and then ensure that they are in compliance. This can be a challenging task, especially when unique leave of absence issues crop up in real time. However, with the help of well-drafted policies and employment counsel, employers can make informed decisions and minimize litigation risk.