Family and Medical Leave Act (“FMLA”) – The FMLA generally requires employers to provide employees with twelve weeks of unpaid leave per year for (1) the birth or adoption of a child, (2) a “serious health condition” that prevents the employee from performing the essential job function of his or her job or (3) caring for a close family member who has a serious health condition. FMLA also permits an employee to take the 12 weeks of leave intermittently or on a reduced leave schedule when medically necessary. Upon completion of the leave, the employee is entitled to be “restored” to the same or an equivalent position.
Only companies with fifty or more employees, within 75 miles of where the employee is working, have to provide FMLA leaves to their employees. Additionally, an employer only has to provide such a leave to 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 the FMLA leave begins. Employers may require that the employee’s leave request be supported by a doctor’s certification. The employee may also be required to present the employer with a “fitness for duty certification” from a doctor upon the conclusion of the leave, indicating that the employee is able to resume the essential tasks of his or her job.
New Jersey Family Leave Act (“NJFLA”) – The NJFLA allows employees to take twelve weeks of unpaid leave per year for (1) the birth or adoption of a child or (2) to care for a close family member who has a serious health condition. As with the Federal statute, under the NJFLA, the employee is entitled to be restored to the same or equivalent position upon the completion of the leave.
In order to be entitled to the leave, the employer must have at least 50 employees who have worked at least 20 weeks during the current or previous year. When counting employees, all if the employer’s workers, whether located in NJ or not, are included. The employee has to be working for the employer for a year and must have worked at least 1,000 hours, (including overtime), during the 12 months preceding the leave. The employee has to provide the same type of medical information as with the FMLA.
In situations where a leave is provided by both the state NJFLA and the federal FMLA, the employee is entitled to only one 12 week leave in a 12 month period to care for a family member or newly born or adopted child. However, a leave granted due to the employee’s disability is covered only by the federal FMLA and may be followed by an additional leave for the care of a family member under the NJFLA.
New Jersey Law Against Discrimination (“NJLAD”) – The NJLAD is considered to be one of the most powerful state anti-discrimination statutes in the country. If upon the expiration of an FMLA or NJFLA leave, the employee is still medically unable to perform the job, further relief may be afforded to the employee by way of a request for a “reasonable accommodation.” The employee or someone on his behalf (e.g. doctor or lawyer) can request an accommodation, which if granted, would allow the employee to continue to perform the essential functions of the employee’s job.
Once the employee requests this assistance from the employer, both the employer and employee have a duty to act in good faith when dealing with each other to search for the appropriate reasonable accommodation. The employer must initiate the informal “interactive process” with the employee to figure out and identify the potential reasonable accommodation options that are available. The accommodation must be reasonable and cannot impose an “undue hardship” on the operation of the employer’s business. Examples of reasonable accommodations may include: (1) changes to the physical work environment of the office to make it accessible to a disabled individual, (2) restructuring the employee’s job, such as providing a modified work schedule, (3) acquiring or modifying equipment to assist the employee such as providing a headphone for a hearing impaired employee and (4) job reassignment or an additional leave of absence.
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