Attorney Michael Shadiack
If your business has 30 or more employees, then come June 30, 2019 it will be covered under New Jersey’s Family Leave Act (FLA). The FLA provides job-protected unpaid leave to an eligible employee for up to 12 weeks to care for a family member. Most employers between 30 and 50 employees have not had to deal with such a law before and its rigorous requirements.
Managing an employee’s leave of absence is one of the more challenging aspects of an HR professional’s job. So for businesses that have never done it before, we asked employment law attorney Michael A. Shadiack of Connell Foley LLP in Roseland, NJ to explain the basics about the FLA.
NJBIA: What is the NJ Family Leave Act?
Shadiack: The FLA is similar to the federal Family and Medical Leave Act (FMLA) in that it protects an employee’s job when he or she needs leave from work for an extended period to take care of a family member. Right now, both laws only apply to employers with 50 or more employees, but on July 1, the state FLA will apply to businesses with 30 more employees (whether within or outside of New Jersey).
For what reasons can an employee take FLA leave?
Basically, an employee may request leave from work to care for a newborn child, a newly adopted child or a family member with a serious health condition. Note that the FLA (unlike the FMLA) does not allow leave for the employee’s own health condition.
The FLA provides eligible employees with up to 12 weeks of unpaid leave to provide care to a family member. On Feb. 19, 2019, Gov. Phil Murphy signed into law an amendment to the FLA, which expanded the definition of a family member to include a child, parent, parent-in-law, sibling, grandparent, grandchild, spouse, domestic partner, one partner in a civil union couple, 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.
The “equivalent of a family relationship” standard is very broadly defined, and could include a non-family member if the employee can demonstrate that he or she has a close association with that individual (e.g., a fraternity brother or seniority sister).
NJBIA: Who is eligible for FLA leave?
Shadiack: To be eligible for leave under the FLA, 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 FLA, 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 so long as the business as a whole employs the threshold number of employees, which come June30 will be 30.
The law provides an exemption from coverage for certain highly paid employees. Specifically, an employee is not entitled to FLA leave if they are among the highest paid 5% 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.
NJBIA: What are the employers’ responsibilities under FLA?
Shadiack: Although FLA leave would be unpaid, the employer must maintain the employee’s medical benefits through its group plan under the same terms and conditions as when the employee was actively employed.
Also, the employee who takes leave under the FLA 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, and benefits). 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.
Per the FLA the covered employer must conspicuously display a notice of its employees’ rights and obligations under the law. The New Jersey Division of Civil Rights makes appropriate notices available to all employers at: http://www.nj.gov/oag/dcr/downloads/posters/8x11_flaposter.pdf.
NJBIA: What are the penalties for violating the provisions of the FLA?
Shadiack: An employer who violates the provisions of the FLA 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 law 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 if there is a proven violation.
