Protecting the Rights
of Employees
of Employees
New Jersey Medical Leave Lawyer for FMLA and Temporary Disability Leave Claims
An Overview of Medical Leave Rights in New Jersey
An employee who needs time away from work for their own medical condition may be entitled to take time off from work under laws including the federal Family and Medical Leave Act, 29 U.S.C. § 2612, the New Jersey Law Against Discrimination (LAD), the Americans with Disabilities Act (ADA), or the New Jersey Temporary Disability Insurance law (TDI).
- FMLA eligibility: The FMLA covers private employers with 50 or more employees, and public employers of any size. An employee qualifies after 12 months and 1,250 hours of work, at a worksite with 50 employees within 75 miles.
- Reinstatement after a medical leave: A worker who took an FMLA leave or New Jersey TDI benefits is entitled to return to their prior position or an equivalent one. With limited exceptions, a refusal to take the worker back violates the law.
- Leave as an accommodation: The LAD, which has no minimum employer size, and the ADA, which covers employers with 15 or more employees, can require time off as a reasonable accommodation for a disability.
- Filing deadline: An FMLA lawsuit generally must be filed within two years of the violation, or within three years if the violation was willful.
Rabner Baumgart Ben-Asher & Nirenberg, P.C., whose employment attorneys practice from Montvale, represents workers in Bergen County and throughout New Jersey who have legal claims and issues relating to medical leave.
The calls we receive at Rabner Baumgart Ben-Asher & Nirenberg, P.C. relating to employee medical leaves tend to come at a difficult moment. Someone is facing surgery, a cancer diagnosis, or a mental health crisis, and their employer has answered their request for time off with silence, pressure to keep working, or a termination letter.
As New Jersey medical leave lawyers who represent employees, we start by determining which laws protect you and how to use them most effectively to put you in the best position possible. Medical leave is one of several New Jersey workplace protections we handle. If your employer has questioned a leave you need, we can review the facts with you, ideally before the leave begins.
What Medical Leave Does the FMLA Guarantee?
The Family and Medical Leave Act entitles an eligible employee to up to 12 workweeks of unpaid leave in a 12-month period. The leave is available when a serious health condition makes an employee unable to perform the functions of their job. A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider, under 29 U.S.C. § 2611. The definition has a broad range that can include diagnostic tests to determine what is causing your symptoms, surgery and recovery, cancer treatment, or a heart condition under ongoing care.
When medically necessary, an FMLA leave can be taken intermittently or on a reduced schedule, so an employee receiving weekly treatment does not necessarily have to take the time in a consecutive block. For planned treatment, the employee must give the employer at least 30 days’ notice, or as much notice as is practicable.
Ordinarily, an employee returning to work from FMLA leave is entitled to the same position or an equivalent one, with equivalent pay, benefits, and terms of employment, under 29 U.S.C. § 2614. However, reinstatement has limits. An employee whose job would have been cut in a genuine layoff gains no protection from being on an FMLA leave. In addition, a salaried employee among the highest-paid 10 percent within 75 miles can be denied restoration if it would cause the employer substantial and grievous economic injury.
The FMLA does not require pay. An employer may require an employee to use accrued vacation, personal, or sick leave during an FMLA leave. The paid time and the protected time then run together rather than one after the other. However, the employer must keep group health insurance coverage in place during the leave, on the same terms as before.
Does New Jersey Law Protect Your Job During a Medical Leave?
New Jersey’s family leave statute does not. The New Jersey Family Leave Act (NJFLA) covers caring for a family member and bonding with a new child, the subjects of our page on New Jersey family leave rights. However, it does not reach an employee’s own illness. Three other state laws fill much of that gap.
Temporary Disability Insurance and the Right to Reinstatement
New Jersey Temporary Disability Insurance (TDI) replaces part of the wages of a worker who cannot work because of an illness or injury that is not work-related. TDI benefits can last for up to 26 weeks.
As amended effective July 17, 2026, the TDI law, and in particular N.J.S.A. § 43:21-55.2, entitles a worker who took temporary disability benefits to be restored when the leave ends, to the position held when the leave began or to an equivalent position of like seniority, status, employment benefits, pay, and other terms and conditions of employment. An employer may not discharge, harass, threaten, or otherwise retaliate against an employee for requesting or taking those benefits. A refusal to reinstate the employee counts as retaliation under the TDI statute.
The TDI law’s right to reinstatement does not repeat the FMLA’s 50-employee threshold, and protects workers at much smaller employers. The worker first must qualify for and receive TDI benefits.
Leave as a Reasonable Accommodation Under the LAD and ADA
The New Jersey Law Against Discrimination (LAD) requires employers to provide reasonable accommodations to an employee with a disability unless doing so would impose an undue burden on the employer. New Jersey Division on Civil Rights (DCR) regulations include modified work schedules and leaves of absence among those accommodations. The LAD has no minimum employer size and sets no fixed number of weeks, so it can require time off when neither leave statute applies. Firing an employee for needing that time also can be disability discrimination under the same statute. Likewise, the federal Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations, including time off from work when appropriate.
Shorter leaves of absence fall under the New Jersey Earned Sick Leave Law, which provides New Jersey employees up to 40 hours of paid sick leave per year for their own physical or mental illness, earned at one hour for every 30 hours worked. The law presumes retaliation when an employer takes adverse action within 90 days after an employee exercises certain rights under it, including filing a complaint with the New Jersey Department of Labor and Workforce Development or a court, or opposing a policy, practice, or act that violates it.
Comparison of FMLA, NJ TDI, LAD and Earned Sick Leave Law
| Federal FMLA | NJ TDI reinstatement | LAD accommodation | Earned Sick Leave | |
|---|---|---|---|---|
| Employer size | Private employers with 50 or more employees; all public employers | No minimum | No minimum | No minimum |
| What the employee needs | Worked 12 months and 1,250 hours of work during past 12 months | Approval for and receipt of TDI benefits | A disability | Sufficient hours worked to earn paid sick leave |
| Length of time off | Up to 12 weeks in 12 months | Benefits for up to 26 weeks | No fixed limit; must be reasonable | Up to 40 hours per year |
| Pay during the absence | Unpaid; can use accrued paid leave | 85% of average weekly wage, up to a weekly maximum the state sets each year | Unpaid unless employee uses accrued leave or employer policy provides pay | Paid |
| Job on return | Same or equivalent position | Same or equivalent position | Protection against disability discrimination | Protection against retaliation |
How Do Employers Interfere With Medical Leave?
Interference sometimes takes the form of an employer’s flat-out refusal to permit a medical leave. It also can occur when an employer approves the leave, but a supervisor nonetheless calls or emails with job assignments during it. Protected absences can get counted negatively under a no-fault attendance policy or on a performance review. In addition, an employer could decide to eliminate a position because it learns that it can manage without the employee during their absence.
The FMLA makes it unlawful for an employer to interfere with, restrain, or deny these rights, or to discharge or discriminate against an employee for using them. Likewise, the LAD and the Earned Sick Leave Law make it unlawful for an employer to retaliate against an employee for requesting or taking time off under them.
Many of the most challenging cases begin at the return from a leave, when an employee comes back and is greeted with a less desirable territory, a worse shift, a demotion described as a restructuring, or a negative performance review.
A work-related injury follows a separate track. Wage replacement then comes from workers’ compensation rather than TDI. New Jersey law separately prohibits firing an employee for pursuing that type of claim, which we address under workers’ compensation retaliation.
How Long Do You Have to File a Medical Leave Claim, and What Is Recoverable?
An employer that violates the FMLA is liable for the wages, salary, and benefits the employee lost, with interest, under 29 U.S.C. § 2617. It also can owe an equal amount to those damages as liquidated damages, which in practice doubles the back pay award. A court can reduce or eliminate the liquidated damages only if the employer proves it acted in good faith with reasonable grounds to believe it was obeying the law. The court also may order reinstatement or promotion, and award attorney’s fees, expert witness fees, and costs. An FMLA action generally must be brought within two years of the last event constituting the violation. However, a willful violation can extend that period to three years.
A disability discrimination claim under the LAD must be filed in the Superior Court of New Jersey within two years, or with the DCR within 180 days. A prevailing plaintiff in court may recover damages for lost wages and benefits, emotional distress damages, and attorney’s fees. Employees in Bergen County can file state claims at the Bergen County Justice Center in Hackensack. Federal claims go to the United States District Court for the District of New Jersey, whose Newark vicinage covers Bergen County.
Rabner Baumgart Ben-Asher & Nirenberg, P.C. has represented New Jersey employees for over 30 years, and the governing deadline is one of the first things we confirm in a medical leave dispute.
What Evidence Decides a Medical Leave Case?
Different medical leave cases are built on different kinds of evidence. Some are built on admissions, such as a manager’s statement or email tying a decision to the employee’s leave. Others are built on a pattern of the employer’s negativity toward the employee’s medical leave, or toward medical leaves in general. Further, many medical leave cases are built on dates. The dates of the leave request, the employer’s response, the leave itself, and the adverse action show whether one event followed from another, and a short gap between a request and a termination often is the most persuasive fact in the case.
The paper trail starts with the employee’s written request, any FMLA notice the employer sent in reply, and the medical certification. In a TDI case, the Department of Labor’s determination letter and payment record show when benefits began and ended. Attendance records reveal whether protected absences were counted under a points system. Performance reviews from before the request, set against criticism that began afterward, and a comparison of the returning job with the one left behind show whether reinstatement was genuine. Headcount and payroll records establish whether the employer had 50 employees and whether the employee worked 1,250 hours. Messages among managers about the absence often surface only in discovery.
How We Approach Medical Leave Claims
We represent employees, and medical leave issues and disputes are a regular part of our practice. Often, a worker who contacts us before the leave starts can be in the strongest position since a letter correcting an employer’s misreading of the FMLA, or of the new TDI reinstatement rule, might resolve the problem before anyone is fired. Our attorneys have represented thousands of New Jersey employees.
When the harm already has happened, we review the timeline and decide which statutes apply. The FMLA, LAD, ADA and TDI reinstatement provisions each include different deadlines and remedies, so for each New Jersey client the choice among them is a strategic decision made based on the facts and circumstances.
What to Do Now if You Need Medical Leave or Were Denied It
- Put your leave request in writing, provide at least 30 days’ notice when possible, and keep a copy of what you sent and every response.
- Apply for New Jersey Temporary Disability Insurance within 30 days after your leave begins, and keep each letter the Department of Labor sends you.
- Ask your doctor to complete any medical certifications promptly, and keep a copy of what was submitted on your behalf.
- Save relevant emails, text messages, and voicemails from supervisors during your leave, especially any request that you keep working.
- Send your employer your doctor’s return-to-work clearance, and confirm in writing what position and schedule you will be returning to.
Frequently Asked Questions About Medical Leave in New Jersey
Can I Be Fired While I Am on Medical Leave?
Yes, you can be fired during a medical leave, but ordinarily it is unlawful if you are fired because of it. An employer may end employment during an FMLA leave for a genuine reason unrelated to the leave, such as a layoff that would have ended your employment anyway. A termination during the leave, or soon after it, is one of the most common starting points for an interference or retaliation claim.
Can My Employer Ask Me to Work While I Am on an FMLA Leave?
Generally, an employer may not require an employee to keep working during an FMLA leave. Limited contact from your employer is allowed, such as confirming the expected return date, asking where a file is kept, or making arrangements to return to work. Assignments, deadlines, or an expectation that the employee stay available are different. They can amount to interference with FMLA rights, even when the leave was formally approved.
Does Mental Health Treatment Qualify for Medical Leave?
Yes, mental health treatment can qualify for FMLA leave. A mental health condition that requires inpatient care or continuing treatment by a health care provider is a serious health condition under the statute. Similarly, depression, anxiety, and similar mental health conditions may be disabilities under the LAD and the ADA, which can require an employer to provide time off as an accommodation.
What If I Need More Time Off After 12 Weeks of FMLA Leave?
The FMLA entitlement ends at 12 weeks, but an employer’s obligations under New Jersey law may not. Additional leave can be a reasonable accommodation under the LAD or the ADA. An employer that terminates an employee the day FMLA leave runs out, without considering whether more time would be reasonable, could face a disability discrimination claim. Likewise, an employee who remains on New Jersey TDI benefits for more than 12 weeks is entitled to be reinstated to their position or an equivalent one if they return to work when their TDI benefits end.
Related Employment Law Matters
An employee whose condition calls for changed duties or a modified schedule, rather than a full medical leave, may be entitled to reasonable accommodations for disabilities under the LAD.
Recovery from childbirth often is covered by TDI. Pregnancy itself brings separate rights, including reasonable accommodations for pregnancy on the job.
New Jersey’s SAFE Act provides separate unpaid leave for specific reasons covered by the law for an employee who is, or whose family member is, a victim of domestic violence or sexual assault. We provide additional information about this under discrimination against victims of domestic violence.
Speak With a Bergen County Medical Leave Attorney
If you are preparing for a medical leave, were told you cannot take one, or came back to a job that no longer resembles the one you left, Rabner Baumgart Ben-Asher & Nirenberg, P.C. can identify which New Jersey and federal medical leave protections apply to you. Please call (201) 777-2250 or send us a message to schedule a consultation.