Family and Medical Leaves

The Right to Take Family and Medical Leaves

The Family & Medical Leave Act (“FMLA”) is a federal employment law that gives many employees the right to take up to 12 weeks off per year due to:

  • The employee's own serious health condition;
  • The serious health condition of the employee's spouse, son, daughter, or parent; or
  • Pregnancy, adoption, or placement of a child in foster care.

Similarly, the New Jersey Family Leave Act ("FLA") is a state statute that entitles covered employees to take up to 12 weeks every 24 months for the serious health condition of their child, husband, wife or domestic partner or due to the birth or adoption of their child.  However, the FLA does not provide time off for an employee's own serious health condition.

Who is Covered?
Generally, to be covered by the FMLA you need to have worked (1) for the employer for at least 12 months; (2) at least 1,250 hours during the previous 12 months; and (3) in a location that has at least 50 employees within a 75 mile radius. 

Similarly, the FLA applies to most employees who worked (1) for the employer for at least 12 months; (2) at least 1,000 hours for the employer during the previous 12 months; and (3) for a company with at least 50 employees nationwide.
The Right to Return to Your Job

One of the primary protections offered by the FMLA and the FLA is that employees who take time off under them generally are entitled to return to their previous jobs or an equivalent job when they return to work at the end of their leaves. In other words, your company either has to hold your job open for you, or it has to find you a similar job in terms of the job duties, salary, benefits and office location.

Am I Entitled to Get Paid While I Am on a Family or Medical Leave?

The FMLA and the FLA do not require employers to pay employees who take a family or medical leave. However, disabled and pregnant employees in New York and New Jersey may be eligible for state disability insurance benefits, and qualified employees who take a family leave, maternity leave, or paternity leave in New Jersey are eligible for benefits under the New Jersey Paid Family Leave Act. In addition, employees can use their accrued paid time off, such as vacation and sick time, during a protected leave. Although they are not required to do so, some employers have policies pursuant to which they pay employees for a period while they are on a family or medical leave.

Protection Against Retaliation

The FMLA and the FLA both make it illegal for employers to retaliate against employees who request time off under them.  For example, it would violate the law for an employer to fire, demote or harass an employee for taking time off pursuant to either statute.

Time Off as an Accommodation For a Disability

In addition to taking a medical leave under the FMLA and that FLA, in both New Jersey and New York employees may be entitled to take time off as a reasonable accommodation for a disability.  Individuals who are eligible to take an FMLA leave often can extend their time off in this way. Similarly, employees who are not covered by the FMLA may be entitled to take medical leaves as a reasonable accommodation.

For more information about your rights under the FMLA, please see our four-part series of Frequently Asked Questions About the FMLA: