Leaves of Absence in New Jersey
the FMLA, FLA, and ADA
By Dena B. Calo, Esq.
NJLM Associate Counsel,
Genova, Burns, & Giantomasi.
Recent cases brought by the Equal Employment Opportunity Commission (“EEOC”) against New Jersey organizations tell us that applying leave policies has become much more difficult in recent months. With the Family Medical Leave Act, New Jersey Family Leave Act and Americans with Disabilities Act Amendments Act working in favor of employees, there are many requirements for today’s employers to follow when employees require a leave of absence from work. This article will help organizations work through these issues to ensure that they are properly applying the law when an employee requests a leave of absence from work.
Family and Medical Leave Act (FMLA) According to the FMLA, after an employee has worked 12 months and 1250 hours, they are entitled to take 12 weeks of unpaid leave (continuously or intermittently) in every 12 month period for a qualifying reason. An employee on FMLA leave is guaranteed reinstatement to their position and health benefits for the duration of his or her leave. An employee can qualify for FMLA leave if it is to:
- take care of a child after birth, adoption or foster care placement during the first 12 months after birth,
adoption or placement;
- recover from the employee’s own serious health condition if the condition affects the employee’s ability to perform one or more essential functions of the job;
- address qualifying exigencies that arise out of a family member’s military deployment or military-related
serious health condition; or
- care for a parent, spouse or child with a serious health condition.
Under the FMLA, a serious health condition is, generally, an illness, injury, impairment or physical or mental condition that involves inpatient care in a medical facility or three days of incapacity followed by treatment by a health care provider. Pregnancy-related care and medical conditions are also protected under the FMLA.
There are no magic words that an employee must use in order to be entitled to FMLA leave and it is the employer’s obligation to provide such leave to employees. Notice of FMLA leave entitlement should be given to employees through postings in the workplace and policies in the employer’s handbook. In addition, an employer is required to provide an employee with information about the FMLA and the appropriate forms to complete as soon as the employee provides the employer with sufficient information of his/her need for FMLA leave.
New Jersey Family Leave Act (FLA) New Jersey is one of the few states that have passed a law providing job protection to employees needing leave to care for a family member with a serious health condition. Employees are covered under the FLA after working at least 12 months and after working 1,000 hours. Similar to the FMLA, employees are entitled to take unpaid leave to:
- care for a child after birth,
adoption or foster
care placement within the first 12 months after birth, adoption or placement, and
- care for a parent (broadly defined), spouse or child with a serious health condition.
The definitions of “serious health condition” under the FLA and FMLA are generally the same. However, under the FLA, an employee is only entitled to 12 weeks of unpaid, job protected leave every 24 months, rather than every 12 months like the FMLA.
If an employer can run an employee’s leave under both the FMLA and FLA, it should do so. For example, if an employee needs to take ten weeks of leave to care for a spouse undergoing cancer treatment, that leave should be treated as both FMLA and FLA leave. Thereafter, if the employee needs to take an additional two weeks of leave to care for her own serious health condition within the 12 month period, she would still have an FMLA entitlement to do so. In addition, the employee would still have two weeks of FLA leave during the original 24 month period. Moreover, depending on how the employer calculates the employee’s FMLA leave year (from the first date leave is taken, from any fixed date, 12 months looking forward, or rolling 12 months looking backward) the employee’s FMLA entitlement would renew after 12 months. Thus it is critically important for employers to have good internal leave tracking and compliance systems so that at any given time, the employer knows an employee’s FMLA and FLA leave entitlement.
For pregnancy, this calculation is even more important. With a healthy pregnancy, when an employee goes out on disability leave (usually four weeks before the birth of the child), the employee is only entitled to FMLA leave for her own disability. That FMLA disability leave will continue for the full length of the disability—usually 6 weeks after birth. This 10 week leave is considered only FMLA time. Thereafter (and any time during the first 12 months after birth), the employee can take protected leave to care for the newborn child. She has two remaining FMLA weeks (which will run concurrently with her FLA time) and then 10 weeks of FLA entitlement. In this example, the female employee would be entitled to 22 weeks of protected leave under state and federal law.
Americans with Disabilities Act (ADA) To make matters more complicated, the ADA was recently amended, making most medical conditions disabilities under the law. The ADA prohibits qualified employees from being discriminated against because of their disability. A disability under the ADA is defined as an impairment that substantially limits one or more major life activities, having a record of such an impairment or being regarded as having such an impairment. The ADA applies to the job application process, hiring, advancement, discharge of employees and other conditions of employment.
In addition to the prohibition against discrimination, the ADA also requires employers to accommodate the known disabilities of its employees. The EEOC cases referenced at the beginning of this article relate specifically to leaves of absence as disability-related accommodations. Thus, not only must employers consider the FMLA when an employee needs leave to care for their own serious health condition, but the ADA now requires the additional consideration of extending leave as a disability accommodation as well. (There are many different types of accommodations that must be considered under the ADA to determine if an employee is qualified to perform the essential functions of his position. For purposes of this article, we are focused on leave as an accommodation.)
To qualify for leave under the ADA, the employee must first demonstrate that they have a disability—a condition that substantially affects a major life activity—whether in the long term or short term. The employee must then demonstrate, typically through a doctor’s certification, that a leave accommodation will allow them to return to work and perform the essential functions of their position. Unlike the FMLA which limits the amount of time a person can take as leave, under the ADA an employee with a disability is potentially entitled to take more than 12 weeks of unpaid leave as a reasonable accommodation so long as it does not impose an undue hardship on the employer. Reasonableness is always the key consideration and factors that should be considered in this analysis are the length of employment in relationship to the amount of leave requested, the type of position the employee is leaving open, whether other employees (including temporary employees) can perform the job, and whether the job can remain vacant for that period of time the employee is not available. Undue hardship is a rigorous and difficult standard to prove in court and depends on things such as the size of the employer, its revenue, and the impact of the leave on the employer’s operations.
What Employers Should Do Each time an employee seeks additional leave at the end of his or her FMLA leave, the employer should look at the situation carefully. It is legally impermissible for an employer to have a blanket policy refusing such leave extensions. The employer must evaluate each request to determine whether the serious health condition that compelled the employee to seek leave is actually an ADA disability. (It will be in most situations). If so, a leave extension as an accommodation may be required.
Indefinite leave requests are generally not considered reasonable accommodations under the ADA. However, if a doctor indicates that the employee’s need for leave is indefinite, the employer is required to seek more information about the leave before terminating the employee. The employer should inform the employee that an indefinite leave request is unreasonable and that he or she should ask the doctor for a more defined leave period. Then the employer should tell the employee that if he or she cannot propose a leave of some definite length, the employer can deny the leave or fill the position. In this way, the employee can discuss options with the doctor and make well-reasoned choices before being terminated.
Lastly, the employer’s policies should reflect the employee’s right to discuss ADA leave requests with human resources in addition to FMLA and NJFLA options. The burden will then be on the employee to seek information regarding any leave of absence they require. When the employee does seek this information, the employer can engage in a dialogue with the employee to ensure that a leave of absence, or leave extension, is both warranted and required under the law.
Dena B. Calo, Esq. of Genova, Burns & Giantomasi’s Newark and Camden offices is the Director of the firm’s Human Resource Practices Group. She can be reached at
(973) 535-7135 or firstname.lastname@example.org
Originally published in New Jersey
Municipalities, Volume 88, Number 8, November 2011