Family and Medical Leaves

Rabner Baumgart Ben-Asher & Nirenberg, P.C. represents employees who have claims and issues under the Family & Medical Leave Act ("FMLA") and the New Jersey Family Leave Act ("NJFLA").  We help workers who are seeking to take a family or medical leave, have been denied a leave, were not reinstated at the end of their leave, or experienced retaliation because they took a leave.

The FMLA is a federal law that guarantees covered employees the right to take up to 12 weeks off from work per year for reasons including:

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

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 NJFLA is a state statute that entitles covered employees to take up to 12 weeks every 24 months due to a family member's serious health condition. However, unlike the FMLA, the NJFLA does not provide time off for an employee's own serious health condition.

Under the NJFLA, "family member" is defined very broadly.  It includes not only children, parents, spouses and civil union partners, but also siblings, parents-in-law, grandparents, domestic partners, foster children, and foster parents.  In fact, it even includes any other blood relative, as well as any other person who has a "close association" that is equivalent to a family relationship. 

The NJFLA applies to most New Jersey 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 30 employees nationwide.

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

That being said, employees on FMLA or NJFLA leaves still can be fired for reasons unrelated to their time off from work.  For example, an employer has the right to lay off an employee who is on a family or medical leave, as long as its decision to do so is unrelated to the employee's legally-protected leave of absence.

The FMLA and the NJFLA 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 because he or she took time off pursuant to either of those statutes.

The FMLA and the NJFLA do not require employers to pay employees while they are on a family or medical leave. However, disabled and pregnant employees in New York and New Jersey may be eligible for state disability insurance benefits. Similarly, qualified employees who take a family leave, maternity leave, or paternity leave in New Jersey are likely to be 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. Further, although employers are not required to do so, some have policies pursuant to which they pay employees for part or all of the time they are on a family or medical leave.

Whether or not they are covered by the FMLA or NJFLA, our family and medical leave attorneys in New Jersey can help employees in New Jersey and New York who are entitled to take a medical leave as a reasonable accommodation for a disability. Similarly, both the New Jersey Law Against Discrimination ("LAD") and the New York City Human Rights Law ("NYCHLR") require employers to provide employees reasonable accommodations for pregnancy, including time off.  Thus, for example, employees who are covered by the FMLA and/or the NJFLA may be able to extend their time off by requesting a reasonable accommodation.

If you would like to discuss your potential claim with us, please contact us online, or call us at (201) 777-2250, to schedule an initial consultation.  We will evaluate your situation, explain your legal rights to you, and provide you advice about the best way to enforce your legal rights.

While it might not always be covered by the FMLA or the NJFLA, the NJ SAFE Act entitles employees to take time off after they, or a member of their immediate family, has been the victim of domestic violence or a sexual assault. You can learn more about the NJ SAFE Act on our  discrimination against victims of domestic violence page.

For more information about your rights under the Family & Medical Leave Act, please see our four-part series of Frequently Asked Questions About the FMLA, which was written by our New Jersey family and medical leave lawyers:

• Part I: FMLA Basics
• Part II: Types of FMLA Leaves
• Part III: Requesting an FMLA Leave
• Part IV: Reinstatement and Remedies