According to studies, as many as one in ten persons of working age in the United States have at least one disability. As a result of a disability or illness, most of us will need to take extended leave during the course of a career. If you or someone you know suffers from a disability or illness and needs to take time off from work, here are some important things to know:
Leave Can Be a Reasonable Accommodation to Your Illness or Disability
State and federal law requires your employer to make reasonable accommodations to your physical or mental disability. Such accommodations include leave from work on a continuous or intermittent basis. You and your employer should engage in a dialogue or “interactive process” concerning your leave request. It is important to support your leave request with pertinent documentation. Absent an undue hardship to the company, your leave should be granted. Prior to your return to work your employer may require you to document you are medically fit to return.
You May Be Entitled to Family and Medical Leave (FMLA) or New Jersey Family Leave
The Family and Medical Leave Act (FMLA) is a federal law administered by the Federal Wage and Hour Division of the United States Department of Labor. The act provides that qualifying employees have the right to take a leave from work for themselves or a family member for up to 12 weeks in a 12-month period for a serious health condition without fear of losing employment due to taking leave.
Only employers who have at least 50 employees working within 75 miles of the employee’s worksite are obligated to provide FMLA leave. Only employees who have worked at least 12 months for the employer and have worked at least 1,250 hours during the 12 months immediately before the date of the FMLA leave begins are eligible to take the leave.
With appropriate notice to your employer, FMLA leave includes: (1) parental leave after the birth of a child; (2) pregnancy leave (where doctor requires bed rest or there is a pregnancy-related complication); (3) adoption or foster care; (4) medical leave to care for family member with a serious health condition; and (5) medical leave for your own serious health condition. Your employer cannot retroactively designate leave as FMLA qualifying.
Your employer cannot discourage you from exercising your right to take FMLA leave or retaliate against you for seeking or taking leave. However, your employer may ask you to provide medical certification regarding your serious health condition.
The New Jersey’s Family Leave Act (NJFLA) has similar eligibility guidelines as the FMLA but does not apply to leave for your own serious health condition. Leave taken under the FMLA for your own serious health condition may be followed by additional leave taken under the NJFLA for the serious health condition of a family member. NJFLA leave is taken within a 24 month period.
What if I Exhaust My FMLA/NJFLA Leave?
Just because you have used all your FMLA/NJFLA leave does not mean that your employer can automatically fire you. Courts have held that additional leave, if reasonable and not a hardship to the company, should be considered.
Getting Paid During Your Leave
Most employers in New Jersey are required to have temporary disability insurance (TDI) in case of an illness or disability that prevents you from working and which is not related to the job. Your employer can select an insurance plan offered by the state or by private insurance. If you become disabled within 14 days of your last day of work you can ask your employer whether the company is covered by a state or private plan. Detailed information about state disability and eligibility conditions is available from the Department of Labor and Workforce Development is available on line at http://www.nj.gov/labor/tdi/state/sp_clt_menu.html.
What if my Injury/Illness is Related to Work?
Contact the Division of Workers Compensation at the Department of Labor and Workforce Development on line at http://www.nj.gov/labor/wc/wc_index.html.
**The information contained in this article is not intended to create an attorney client relationship. If you need help with a specific legal problem, contact a qualified attorney. If you have a question about your rights or responsibilities in the workplace please feel free to contact David Rostan, an attorney who has focused his practice for over twenty-three years on employment law. He can be reached at 973-520-8301, by email at email@example.com, or by visiting his web site www.davidrostanlaw.com.
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