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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 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.

The New Jersey Family Leave Act

Similarly, the New Jersey Family Leave Act ("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 members include not only children, parents, spouses and civil union partner, but also siblings, parents-in-law, grandparents, domestic partners, foster children, and foster parents.  It even includes any other blood relative and 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.
The Right to Return to Your Job

One of the primary protections offered by both the FMLA and the NJFLA 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 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.

Protection Against Retaliation

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 statute.

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

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.

Time Off as a Reasonable Accommodation

Whether or not they are covered by the FMLA or NJFLA, employees in both New Jersey and New York employees may be 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.

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: