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Family and Medical Leave

— Background —
Not including New Jersey’s Paid Sick Leave Law, there are eight separate federal and state statutes that guarantee leave time or partial wage replacement for New Jersey workers.

Employers in New Jersey many be covered under the Americans with Disabilities Act (ADA), the Federal Family and Medical Leave Act (FMLA), New Jersey Family Leave Act (NJFLA), New Jersey Family Leave Insurance (NJFLI), New Jersey Law Against Discrimination (NJLAD), New Jersey Security and Financial Empowerment Act (NJ SAFE Act), the New Jersey Temporary Disability Benefits (TDB) law, and the New Jersey Workers’ Compensation Act (WCA).

The interplay of these various laws poses significant challenges for employers and is a source of confusion for many human resources managers across the state. This document sets forth pertinent information concerning the NFLI, the NJFLA and the FMLA (similar documents can be found at www.njbia.org to provide general information on other laws including paid sick leave).

— New Jersey Family Leave Insurance (NJFLI) Law —
New Jersey’s Paid Family Leave Insurance law was enacted on May 2, 2008 and revised in 2019. The NJFLI is a wage-replacement statute that provides benefits to both public- and private-sector workers for the purpose of bonding with a newborn child or caring for a sick family member.

Which employers are covered under the NJFLI law?
Unlike the NJFLA, which applies only to companies with 30 or more employees (as of June 30, 2019), the NJFLI applies to all employers regardless of size. Specifically, NJFLI applies to all employers covered under the New Jersey Unemployment Compensation Law. As such, an employer is covered if he or she employs one or more individuals and pays wages of $1,000 or more in a calendar year.

Which employees are eligible for NJFLI benefits?
An employee is eligible for NJFLI benefits if he or she works for a covered employer and is engaged in “employment” as that term is defined in the New Jersey Unemployment Insurance Compensation law. In order for an employee to have a valid claim in 2021, the employee must have earned $220 or more during the 20 calendar weeks in the base year or $11,000 during the base year (the base year is defined as the 52 weeks immediately before the leave begins).

For what reasons can an employee receive NJFLI benefits?
An employee can receive NJFLI benefits to bond with a child during the first 12 months after the child’s birth or during the first 12 months after an adoption. For children other than adoptees, the individual claiming benefits must be the biological parent of the child or the domestic partner or civil-union partner of the child’s biological parent. In addition, an employee can receive NJFLI benefits to care for a family member (child, parent, parent-in-law, sibling, grandparent, grandchild, spouse, domestic partner, civil-union partner, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship) with a serious health condition. This also includes workers dealing with any incident of domestic violence or any sexually violent offense as provided by the NJ SAFE Act. For the purposes of NJFLI, a serious health condition is an illness, injury, impairment, or physical or mental condition that requires inpatient care in a hospital or other medical care facility, or continuing medical treatment or supervision by a healthcare provider.

What is the duration and weekly rate for NJFLI benefits?
Covered employees are eligible for up to 12 consecutive weeks of benefits or up to 8 weeks of intermittent leave benefits during a 12-month period and are entitled to 85 percent of their average weekly wage subject to a maximum amount. The maximum amount is 70 percent of the Statewide average weekly wage for all workers ($903 in 2021). For the purposes of bonding with a newborn or adopted child, NJFLI benefits must be claimed on a continuous or intermittent basis before the child’s first birthday or first year of adoption. For the purposes of caring for a family member with a serious health condition, NJFLI benefits may be taken on an intermittent basis as long as the employer is provided with appropriate medical certifications, 15 days’ prior notice (unless prior notice is not possible), and reasonable steps by the employee to accommodate the employer’s workplace operations.

What are an employer’s responsibilities under the NJFLI law?
All employers covered under the NJFLI law must conspicuously post a notice in their workplace advising their employees of the provisions of the law. A copy of the notice can be obtained by calling the Department of Labor and Workforce Development at 609-777-3200. In addition, employers must provide their employees with NJFLI notification upon hiring, after being informed that the employee plans to apply for benefits, or whenever an employee requests the notification.

Does the NJFLI law protect an employee’s job?
Not necessarily. Unlike the NJFLA and the FMLA, the NJFLI law is not a job-protection statute and it does not mandate that an employer maintain an employee’s position for any period of time. However, the law does provide that the NJFLI, NJFLA and FMLA may run concurrently. As such, an employee’s job may be protected under the NJFLA or the FMLA while they are taking NJFLI leave. Moreover, employers should be cautious in denying reinstatement to employees who have taken leave under the NJFLI law, as there are a host of other anti-discrimination and civil rights laws that may provide protections to such employees under certain circumstances. The denial of reinstatement to an employee who has taken NJFLI has not yet been litigated, and treatment of this issue by the courts is uncertain.

Where can I get more information about NJFLI?
For more information, click here. In addition, the NJ Department of Labor has set up a special email account for employers and human resources professionals who have questions regarding specific scenarios related to NJFLI. The email address is: FLI@dol.state.nj.us.

— New Jersey Family Leave Act (NJFLA) —
The New Jersey Family Leave Act was enacted in 1989 and 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 family member. Unlike the NJFLI law, the NJFLA does not provide wage replacement for eligible employees. Moreover, the NJFLA does not require an employer to pay an employee for the time that the employee is on leave.

Which employers are covered under the NJFLA?
Employers with 30 or more employees are subject to the provisions of the NJFLA. For the purposes of counting employees, workers who are situated in workplaces outside of New Jersey count toward the 30-employee threshold. Employers with fewer than 30 employees are exempt.

Which employees are eligible for leave under the NJFLA?
To be eligible for leave under the NJFLA, an employee must have worked for a covered employer for at least 12 months and have worked 1,000 base hours in the preceding 12 months. For the purposes of the NJFLA, an employee is eligible for leave if they work full time in a New Jersey facility or if they perform partial work in New Jersey, but their base of operations is outside of New Jersey.

The law provides an exemption from coverage for certain highly paid employees. Specifically, an employee is not entitled to NJFLA leave if they are among the highest paid 5 percent of the employer’s workers or are one of the seven highest paid employees, whichever is greater, and the denial of leave is economically necessary. Under these circumstances, the employer must inform the employee of the denial.

For what reasons can an employee take leave under the NJFLA?
Under the NJFLA, an employee may take leave to care for a newborn child, a newly adopted child or a family member (child, parent, parent-in-law, sibling, grandparent, grandchild, spouse, domestic partner, civil-union partner, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship) with a serious health condition. For the purposes of the NJFLA, a serious health condition is an illness, injury, impairment, or physical or mental condition which requires inpatient care in a hospital or other medical facility, or continuing treatment or supervision by a healthcare provider.

What is the duration of leave available under the NJFLA?
An eligible employee may take up to 12 weeks of leave in any 24-month period upon advance notice to the employer. Leave taken for the birth or adoption of a child must commence within one year of the birth or adoption and the leave must be taken in consecutive weeks (unless the parties agree otherwise). Employees taking leave to care for a family member with a serious health condition can take the 12 weeks of family leave on a consecutive, reduced leave, or intermittent basis. Leave taken on an intermittent or reduced schedule basis must be taken in a manner that does not unreasonably disrupt the employer’s workplace.

What are an employer’s requirements under the NJFLA?
All employers subject to the provisions of the NJFLA must conspicuously display notice of employees’ rights and obligations under the law. The New Jersey Division of Civil Rights makes appropriate notices available to all employers here. In addition, employers can call the division at 609-292-4605.

Does the NJFLA protect an employee’s job?
Yes. An employee who takes leave under the NJFLA shall, upon expiration of the leave, be restored by the employer to the position that he or she previously held (or to a position equivalent in status, pay, benefits, etc.). An employer need not reinstate the employee if, during the leave period, the employer experiences a reduction in force or layoff that would have resulted in the employee’s discharge anyway. The law also requires the employer to continue the employee’s group health coverage and other employment benefits during the period of FLA leave.

What are the penalties for violating the provisions of the NJFLA?
An employer who violates the provisions of the NJFLA is subject to fines and civil liability. Specifically, the law prohibits an employer from interfering with an employee’s right to take leave, or from discharging or discriminating against an employee who takes leave, or who seeks to enforce their rights under the law. An employer who violates the act is subject to a fine of up to $2,000 for a first offense and $5,000 for each subsequent offense. In addition, an aggrieved employee may institute a civil suit where punitive damages and attorney’s fees may be awarded.

— Federal Family and Medical Leave Act (FMLA) —
The federal Family and Medical Leave Act was enacted in 1993 and requires covered employers to grant eligible employees time off from work in connection with the birth or adoption of a child, the serious illness of a family member, or the employee’s own serious health condition. Thus, unlike the NJFLI and the NJFLA, the FMLA can be taken for the claimant’s own medical condition. The FMLA is similar to the NJFLA (and different from NJFLI) in that it does not provide wage replacement for eligible employees and does not require the employer to pay an employee for the time that the employee is on leave.

Which employers are covered under the FMLA?
The FMLA applies to all public agencies (state, local and federal) regardless of size and to all private-sector employers who employ 50 or more workers in 20 or more work weeks in the current or preceding calendar year.

Which employees are eligible for leave under the FMLA?
To be eligible for leave under the FMLA, an employee must have worked for a covered employer for at least 12 months and have worked at least 1,250 hours in the preceding 12 months. The employee must work at a location in the United States (or in any territory or possession of the U.S.) where 50 or more employees work within a 75-mile radius.

The FMLA contains a “key employee” exemption which provides that a salaried employee who is among the highest paid 10 percent of the employer’s workers may be denied reinstatement if the denial is necessary to prevent substantial and egregious economic harm to the operations of the employer.

For what reasons can an employee take leave under the FMLA?
There are several reasons for which an employee can take leave:

  1. An employee may take leave to care for a newborn child, a newly adopted child or a family member (child, parent or spouse) with a serious health condition.
  2. Unlike the NJFLI law and the NJFLA, an employee may take FMLA leave when he or she is unable to work because of his or her own serious health condition.
  3. The FMLA permits an employee to take leave to care for a family member who is a recent veteran with a serious injury or illness incurred in the line of duty — even if the condition does not arise until after the veteran has left the military, or, even if the condition existed before active-duty service but was aggravated by serving.
  4. The FMLA permits an employee to take leave for any “qualifying exigency” (explained below) arising out of the military active-duty status of a spouse, child or parent. This provision also provides for an extended leave entitlement to an employee who is the spouse, child, parent or next-of-kin of a military service member who is injured in the line of duty.

For the purposes of the FMLA, a qualifying exigency includes an issue arising from a military member’s short notice deployment; a military event (ceremony, program, etc.) or a related activity; childcare issues; financial and legal issues related to the person’s deployment; counseling; etc. Recent amendments expanded qualifying exigency leave to include family members serving in the Regular Armed Forces, in addition to the National Guard and Reserves. They also added the requirement that the military member must be deployed to a foreign country in order for eligible family members to take leave for a qualifying exigency.

It should also be noted that the US Department of Labor issued guidance regarding the application of the FMLA as it relates to caring for a newborn or sick child (Interpretation Letter No. 2010-3). The letter clarifies that an employee need not have a biological or legal relationship to a child in order to take FMLA leave to bond with or care for that child. Rather, the employee need only demonstrate that he or she stands “in loco parentis” to the child, which may be established by showing that the employee assumes, or intends to assume, parental responsibilities through the delivery of either day-to-day care or financial support. Thus, the Interpretation Letter means that an employee may be eligible for leave to bond with the child of the employee’s same-sex partner, even if the employee does not have a legal relationship with the child.

What is the duration of leave available under the FMLA?
An eligible employee may take up to 12 weeks of leave in any 12-month period upon advance notice to the employer, except that an employee who is taking leave to care for an injured military service member is entitled to a maximum of 26 weeks.

FMLA leave may be taken in full-week increments, intermittently or on a reduced-leave basis depending upon the circumstances. Full-week incremental leave may be taken for any reason, while intermittent or reduced-schedule leave may be taken only where medically necessary for a serious health condition of the employee or a family member (unless the employer agrees otherwise). An employer may require an employee who is taking their leave on an intermittent or reduced schedule basis to transfer temporarily to an alternative (comparative pay and benefits) position if keeping the employee in their position would be a hardship for the employer.

What are an employer’s requirements under the FMLA?
Employers subject to the provisions of the FMLA must conspicuously display a notice approved by the U.S. Secretary of Labor explaining the rights and responsibilities set forth under the FMLA. Additionally, employers must either include the FMLA notice in their employee handbook or distribute a copy to newly hired employees. Employers are also obligated to affirmatively notify employees of their rights under the FMLA when such employees seek leave for qualifying reasons.

When an employee requests FMLA leave or an employer becomes aware that an employee’s absence may be covered under FMLA, the employer must provide a notice of eligibility within five business days. The notice must specify whether or not the employee is eligible for FMLA, and if they are not eligible, at least one reason why they are not covered by the law.

Where can employers get posters and forms relating to employee rights under FMLA?
Effective March 8, 2013, covered employers must use updated FMLA notice and certification forms and a new FMLA poster.

Below is a listing of the various forms and posters:

Does the FMLA protect an employee’s job?
Yes. An employee who takes leave under the FMLA shall, upon expiration of the leave, be restored by the employer to the position that he or she previously held (or to a position equivalent in status, pay, benefits, etc.). FMLA employees have no greater rights than they would have had if they were in continuous employment without taking leave. Thus, an employer need not reinstate the employee if a reduction in workforce would have eliminated the employee’s position whether or not they were on leave. The law also requires the employer to continue the employee’s group health coverage on the same terms that were provided before the leave period.

What are the penalties for violating the provisions of the FMLA?
It is unlawful for an employer to interfere with, restrain, or deny the exercise of any right provided under the law and it is illegal for an employer to discharge or discriminate against an individual for engaging in FMLA-related activities. The Wage and Hour Division of the U.S. Department of Labor investigates FMLA complaints and is authorized to seek court orders compelling compliance. Aggrieved employees also have the right to institute a private civil action against an employer and may be entitled to attorney’s fees and court costs.

— For More Information —
If you need additional information, please contact NJBIA’s Member Action Center at 1-800-499-4419, ext. 3 or member411@njbia.org.

 

This information should not be construed as constituting specific legal advice.  It is intended to provide general information about this subject and general compliance strategies.  For specific legal advice, NJBIA strongly recommends members consult with their attorney.