Folks, you are in for a treat today.
Today we have a guest blogger at The Employer Handbook. It’s Janette Levey Frisch. Janette is In-House Counsel at Joule, Inc. where she provides comprehensive legal representation and support to a staffing company with five subsidiaries throughout the East Coast. You can connect with Janette on Twitter here and on LinkedIn here.
And if you want to read a great piece about the interplay between the Family and Medical Leave Act and the New Jersey Family Leave Act, then hit the jump…
What is family and medical leave and why should employers care?
Family/Medical leave is a topic of concern to employers and employees alike. We hear a lot about it online and in the news. Many versions of paid family leave bills have been introduced in Congress. In 2008, the State of New Jersey enacted a paid family leave bill. Prior to New Jersey’s new paid family leave, the Family Medical Leave Act (FMLA), a federal law enacted in 1993 under President Clinton, applying in all states, and the New Jersey Family Leave Act (NJFLA), enacted in 1989 have provided unpaid family leave for those who qualify. What are each of these laws, how and where do they differ, and most importantly, what is their aggregate impact on New Jersey employers and employees?
The FMLA requires public and private employers with 50 or more employees within a 75-mile radius to provide employees who have worked at least 1,250 hours in the preceding 12 months with at least 12 weeks of unpaid, job protected leave. Those months and hours need not be consecutive in order for the employee to qualify for FMLA leave. Employers must also maintain the employee’s medical coverage on the same conditions as if the employee had been continuously employed during the entire leave period. FMLA leave provides an employee job-protected time off to care for one’s own serious medical condition as well as that of spouses, parents or children. Effective January 16, 2009, FMLA also allows job-protected leave for qualifying circumstances due to an employee’s spouse, child or parent being on active military duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation. The employee must provide adequate documentation of the circumstances that qualify him or her for FMLA time.
New Jersey has its own family leave rules too…
New Jersey family leave laws provide leave necessary for taking care of other people defined as family members but not for one’s own medical condition. This is one aspect in which the NJFLA differs from the FMLA. The NJFLA includes a child, spouse, civil union partner, parent, or parent-in-law, stepparent or foster parent in the definition of the term “family member”. As with FMLA, the employee must provide appropriate documentation of the need to take such a leave, 30 days in advance or as soon as practicable in emergent situations. An employee may take up to 12 weeks job-protected leave in every 24-month period if the employer employs 50 or more employees nationwide who have worked 20 or more weeks. (The law makes exceptions for either the 7 most highly paid employees or those whose base salaries is within the highest 5% of those salaries of all employees if their absence would have a substantial negative impact on the business). The employee requesting leave must have worked for the employer at least 1000 hours in the last year immediately prior to the requested leave. Overtime hours can be counted toward the 1000 hours.
Can the FMLA and NJFLA apply at the same time?
Absolutely! If an employee qualifies for leave under both statutes simultaneously then both will run concurrently. Here is one example:
Emma Employee takes a maternity leave. Since she has worked the requisite number of hours in the preceding 12 months, she will qualify for FMLA leave. She will be entitled to FMLA leave until her doctor releases her from disability. Under FMLA she can take leave time for her own recovery, and, under some circumstances, to take care of her new baby. If her doctor releases Emma from disability status 7 weeks after she gives birth, and she then needs 12 weeks’ time to take care of her new baby, Emma will be entitled to 5 more weeks’ FMLA and 12 weeks’ NJFLA simultaneously. Practically speaking how will this work? Emma will be entitled to a total of 19 weeks’ leave under FMLA and NJFLA. The last 5 weeks of FMLA and the first five weeks of NJFLA will run concurrently. (Emma may also be entitled to Temporary Disability Insurance payments during some of her FMLA leave. Full discussion of TDI is beyond the scope of this post.)
Since the NJFLA allows up to 24 weeks of combined leave, couldn’t Emma claim that much time based on needing to take care of her baby?
Based on the facts in the above example, no. When might an employee be able to take 24 weeks’ combined leave? Let’s look at another example:
Larry Laborer and his wife are in a serious car accident and both suffer significant injuries. Larry recovers after 12 weeks, but his wife does not. Larry’s doctor releases him from disability after 12 weeks. If Larry has been with his employer for at least 12 months prior and can show a) that he has worked at least 1,000 hours in those preceding 12 months and b) that he needs an additional 12 weeks of leave in order to care for his wife, then Larry will likely be entitled to a full 12 weeks of NJFLA leave providing him a total of 24 weeks total job-protected leave time.
Enter the New Jersey Paid Family Leave Act.
The Paid Family Leave Act amends New Jersey’s Temporary Disability Insurance (TDI) law, which provides payments by the State to covered employees for their own disability. Payments are funded by employee contributions via income withholding by employers. Under the Paid Family Leave Act, employees of may use up to 6 weeks of their annual 26 weeks of TDI to care for ill children, parents, spouse, domestic or civil partner, or newborn or adopted child. (“Parents” include stepparents, foster parents and in-laws. “Children” include stepchildren, foster children and children of domestic or civil union partners.) How does it impact on FMLA and NJFLA? Perhaps most important is that it does not provide leave time over and above what the FMLA and NJFLA already allow. Please note that the Paid Family Leave Act does not provide job protection, as does the NJFLA or the FMLA. Here are some other key differences: The Paid Family Leave Act applies to employers with one or more employees that are paid either $143 or more per week for 20 consecutive weeks or $7,200 or more over the previous 52 weeks, i.e., most employers, including small businesses). Employers must allow up to 6 weeks’ paid leave to an eligible employee who is caring for a family member with a serious health condition, or caring for a child within 12 months of birth or placement for adoption. The Paid Family Leave Act essentially defines “family member” the same way the NJFLA does. As of 2008, the year the Paid Family Leave Act was enacted, employees could receive up to two-thirds of their weekly pay, capped at $524 per week in payments from the State, with yearly adjustments, (presumably to keep up with the cost of living.) As with the NJFLA the Paid Family Leave Act will not cover an employee who is taking time off to care for his or her own medical condition. Employees must provide at least 30 days notice or s/he will forfeit two weeks of paid leave, unless the failure to provide notice was due to unforeseeable circumstances. Finally, under the Paid Family Leave Act, if the employee has remaining Paid Time Off (PTO), the employer may require him or her to exhaust up to two weeks of that paid time before s/he can receive any payments under the New Jersey Paid Family Leave Act.
Now for the interplay between FMLA/NJFLA and the New Jersey Paid Family Leave Act:
Let’s go back to Emma Employee and see how all three of these types of leave would apply to her:
We have already established that Emma is eligible for leave under FMLA and then NJFLA. We have also established that Emma needed 7 weeks after childbirth for her own recovery, and then another 12 to take care of her new baby. Assuming Emma’s employer does not have its own more generous leave policy, Emma will receive no pay for the first 7 weeks of her leave (except perhaps Temporary Disability Insurance payments from the State, which is beyond the scope of this article.) With respect to Paid Family Leave, if Emma has earned the requisite amount of money before she takes her leave, then she may receive the lesser of two-thirds of her weekly pay or $524 a week (plus cost of living adjustments) for up to six of the twelve weeks following her initial seven weeks of leave. Suppose however, that Emma has 5 days of unused PTO when she goes on leave. Now, what? With respect to those 6 weeks of paid leave to which Emma would otherwise be entitled, Emma will first have to use up those 5 PTO days. She will then be eligible for 5 weeks’ paid leave. Her pay will either be two-thirds of her weekly pay or $524 plus cost of living adjustments, for those 5 weeks, whichever amount is less.
What about Larry Laborer?
If Larry has earned at least $143 per week over 20 consecutive weeks or $7,200 in the preceding calendar year, then for the 12 weeks that Larry receives FMLA leave for himself, he gets no pay (except for TDI payments to which he may be entitled). For the 12 weeks of NJFLA leave, it depends on whether Larry has any unused PTO. Let’s say that Larry has 15 days’ unused PTO. He must use up two weeks or 10 PTO days first. He will then, during those 12 weeks that he has NJFLA leave, receive 4 weeks pay under the Paid Family Leave Act. The amount of that pay will be either two-thirds his normal weekly salary or $524 plus cost of living adjustments, whichever amount is less.
(Regarding all three types of leaves, there are times when an employee may be able to take intermittent leave. Time and space do not permit detailed discussion of this type of leave in this article, however.)
How does one figure out which employees are entitled to which types of leave and the amount of time and money, if any?
Employers (and employees) should keep clear records as to the employee’s hire date, how many hours s/he works per week, how much unused PTO time the employee has, if any, and how much pay s/he has received in the current and preceding calendar years. Employers will also need to get a clear indication from the employee’s physician as to when the employee is being released from disability (if applicable) and obtain clear documentation as to the circumstances giving rise to the need for such a leave. Employers generally need to advise the employee requesting leave that s/he is entitled to FMLA and any other applicable leaves, the effective date of the leave and keep track of the anticipated return date. Failure to do so can, in some cases result in the employee having more than 12 weeks’ leave, which is why good notice and record keeping practices are so important. Employers can be subject to lawsuits with significant judgments, as well as other penalties if they deny, interfere with or retaliate against any employee exercising their rights to paid or unpaid leave under the FMLA, NJFLA or NJPFLA. Employers who do not have their own HR Department of in-house counsel knowledgeable of these laws should consult with competent employment counsel to ensure that they are in compliance with these laws.
Disclaimer: This article is for informational purposes only, and is not intended as an exhaustive treatment of the subject of federal and New Jersey leave laws or as legal advice and does not create an attorney-client relationship. Readers who have questions about state and federal leave laws are advised to seek consultation with competent local counsel.