Rabner Baumgart Ben-Asher & Nirenberg is fully operationally during the COVID-19 epidemic. For details, please click here.

Family and Medical Leaves

The Family & Medical Leave Act

Family and Medical LeavesThe Family & Medical Leave Act (“FMLA”) is a federal law that guarantees covered employees the right to take up to 12 weeks off from work 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.

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.

The New Jersey Family Leave Act

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 due to a family member's serious health condition. However, unlike the FMLA, the FLA does not provide time off for an employee's own serious health condition.

Under the FLA, family members includes children, parents, spouses and civil union partner.  Starting on June 1, 2019, family members will be even broader, and will include siblings, parents-in-law, grandparents, domestic partners, foster children, foster parents, any other blood relative, and any other person who has a "close association" that is equivalent to a family relationship. 

The FLA 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 50 employees nationwide (or after June 1, 2019, for companies with at least 30 employees nationwide).
The Right to Return to Your Job

One of the primary protections offered by both the FMLA and the FLA is that employees who take 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 it has to find you a similar job in terms of the job duties, salary, benefits and office location.

That being said, employees on FMLA or FLA 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 not related to the employee's legally-protected leave of absence.

Protection Against Retaliation

The FMLA and the FLA 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 statute.

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 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, 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. 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.

Time Off as a Reasonable Accommodation

In addition to taking a medical leave under the FMLA and the FLA, in both New Jersey and New York employees may be entitled to take time off 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. 

Employees who are not covered by the FMLA or the FLA may be entitled to take a medical leave as a reasonable accommodation.  Likewise, individuals who are eligible to take an FMLA or FLA leave may be able to extend their time off by requesting a reasonable accommodation.

Additional Information

For more information about your rights under the Family & Medical Leave Act in New Jersey or New York, please see our four-part series of Frequently Asked Questions About the FMLA: