statewide legal authority since
1878
JULY 21, 2015
NJLJ.COM
All in the Timing:
Handling Medical
Leaves of Absence in NJ
By Ivo Becica
A
s 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 similarlysituated 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.
Workers' Compensation
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. ■
Becica is an associate in the Labor Relations & Employment
Law Department of Obermayer Rebmann Maxwell & Hippel
in Philadelphia. He focuses his practice on defending
employment matters.
Reprinted with permission from the July 21, 2015 edition of the NEW JERSEY LAW JOURNAL. © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
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