FAMILY MEDICAL LEAVE AND LOCAL GOVERNMENT EMPLOYEES
There are three main types of mandated medical leave that affect local governments in New Jersey: The Federal Medical Leave Act of 1993, New Jersey Family Leave Insurance, and New Jersey Family Leave. An eligible employee can take either, all, or none of these types of leave. However, if the employee elects to take both Federal Medical Leave and Family Leave Insurance, they must be taken concurrently. An employee may not extend their leave by first taking one, and then the other.
FEDERAL MEDICAL LEAVE ACT OF 1993
In early 1993, Congress passed, and President Clinton signed, and Federal Medical Leave Act of 1993, or FMLA. Before FMLA, there was no federally mandated employment leave. Individual states and employers were free to determine their own policies.
FMLA took effect in August of 1993. It covers all public agencies, including local governments and schools. The individual must have worked for their employer for at least 12 months (they need not be consecutive), at least 1,250 hours during the 12 calendar months preceding their request for leave.
An eligible employee can take advantage of FMLA:
- to care for a new child, whether for the birth of a son or daughter, or for the adoption or placement of a child in foster care;
- to care for a seriously-ill family member (spouse, child or parent);
- to recover from a worker’s own serious illness;
- to care for an injured service member in the family; or
- to address qualifying exigencies arising out of a family member’s deployment.
If an employee foresees the need to take FMLA, they are to give 30 days notice. If the medical issue is sudden, the employee should advise the employer as soon as practicable, usually by the next business day.
FMLA provides 12 weeks of unpaid leave. However, the employer may require that an employee use any eligible sick or vacation time simultaneously with the employee’s FMLA leave. An employee may also take intermittent leave, meaning the employee uses their 12 weeks sporadically and not in one block. The employee must provide a doctor’s note indicating that intermittent leave is necessary.
When an employee returns from FMLA leave, the employer must provide them with their same position, or an equivalent position with equivalent pay, hours, and benefits. However, the employee has no greater rights than if they had remained at work; so, for example, if the employee would have been laid off during their leave, they have no right to return to their position.
NEW JERSEY FAMILY LEAVE INSURANCE
The State of New Jersey now provides 6 weeks of paid leave for medical issues. This leave is finances through a payroll tax on the employee; employers do not contribute to the coverage and incur no costs if an employee opts to take paid family leave. Employees of all private and governmental employers subject to the New Jersey Unemployment Compensation Law are covered.
Family Leave Insurance, or FLI, is available for:
- Bonding with a newborn or newly adopted child during the first 12 months after the child’s birth or adoption.
- Care of a seriously ill family member. Family member means child (biological, adopted, foster, stepchild, legal ward, or child of a civil union or domestic partner) less than 19 years of age; child over 19 and incapable of self-care; spouse; domestic partner; civil union partner; or parent of a covered individual.
Note that FLI may not be used for an employee’s own medical condition.
FLI to bond with a new child must be for a single continuous period unless the employer permits the employee to take leave in non-consecutive periods. In this case, each leave period must be at least seven days.
An employee may file for leave to care for a family member for six consecutive weeks, for intermittent weeks, or for 42 intermittent days during the 12-month period beginning with the first date of the claim.
In order to establish a valid family leave claim, an employee must have worked for a New Jersey covered employer and earn:
- $145 or more per week during 20 calendar weeks in the base year; or
- $7,300 or more during the base year
The "Base Year" period is the 52 weeks immediately before the week in which family leave began. Only New Jersey covered wages earned during the base year period can be used to establish a valid claim.
Employees intending to take leave to bond with a newborn or newly adopted child must provide the employer 30 days notice, or risk a 2-week reduction in benefits, unless the time of the leave is unforeseeable or the time of the leave changes for unforeseeable reasons. Employees intending to take leave to care for a seriously ill family member must provide the employer with prior notice of the family leave in a reasonable manner, unless an emergency or other unforeseen circumstance makes this impractical.
Employees intending to take leave to care for a seriously ill family member on an intermittent basis must provide the employer with 15 days notice prior to the leave unless an emergency or other unforeseen circumstance makes this impractical.
Similar to FMLA, an employer may require that an employee take up to two weeks of eligible sick or vacation time simultaneously with their FLI leave.
Unlike FMLA, FLI establishes a monetary benefit that an employee may take during medical leave; it does not establish a right to leave. In other words, an employee who takes only FLI does not have any right to return to their position at the end of their leave.
An employer may also establish a private plan if the benefits provided are equal or better than FLI, eligibility is not more restrictive than FLI, and the cost to the employee is not greater than FLI.
NEW JERSEY FAMILY LEAVE ACT
The New Jersey Division on Civil Rights enforces the New Jersey Family Leave Act, or NJFLA, which requires covered employers to grant eligible employees time off from work in connection with the birth or adoption of a child, or the serious illness of a parent, child, or spouse. NJFLA's definition of "parent" includes a parent-in-law or a stepparent.
NJFLA provides for up to twelve weeks of leave in a 24-month period. The 24-month period begins on the first day of the employee's first NJFLA leave.
All employers with 50 or more employees anywhere worldwide must comply with NJFLA for their New Jersey employees.
To be eligible for family leave under NJFLA, an employee must be employed in New Jersey by a covered employer. The employee also must be employed for at least 12 months for the employer, and must have worked 1,000 base hours in the preceding 12 months.
Like NJFLA, FMLA also provides time off from work in connection with the birth or adoption of a child or the serious illness of a parent, child, or spouse. When an employee takes a leave for a purpose covered by both FMLA and NJFLA, the leave simultaneously counts against the employee's entitlement under both laws.
However, FMLA provides time off from work due to an employee's own disability, while NJFLA does not provide covered employees with leave for their own disabilities. Thus, even though an employee may utilize all of his or her allotted time under the federal FMLA due to his or her disability, the employee may subsequently be entitled to time off under NJFLA in connection with the birth or adoption of a child or the serious illness of a parent, child, or spouse.
FMLA provides up to twelve weeks in a 12-month period, rather than a 24-month period as provided in NJFLA.