We write to alert your readers to important changes in New Jersey state regulations that impact employees' right to family and medical leaves. Both federal and state law are implicated in determining an employee's ability to take protected time off from work for a family or medical leave. On the federal side, the Family and Medical Leave Act ("FMLA") applies; in New Jersey, the Family Leave Act ("NJFLA") applies also.
The new regulations are intended to make the NJFLA more consistent with the federal FMLA; they became effective on March 5, 2007. Although some differences will continue to exist between the NJFLA and its federal counterpart, the new amendments, discussed in detail below, provide clearer guidance to New Jersey employers who must reconcile their obligations to provide family and medical leave pursuant to state and federal law. The new regulations also clarify instances in which certain employees may be eligible to take up to 24 weeks of protected leave.
Background On FMLA And NJFLA
The New Jersey and federal leave statutes differ in their respective eligibility requirements in several respects. The FMLA applies to all employers with 50 or more employees located within a 75-mile radius of the employer's worksite. By contrast, the NJFLA also applies to all employers with at least 50 employees, but it does not require that those 50 employees be located within 75 miles of each other. In other words, an employer with 50 or more employees must comply with the NJFLA if only one of its employees is located in New Jersey. In addition, pursuant to the FMLA, employees who have been employed for at least 12 months and have worked at least 1,250 hours during the preceding 12 months are entitled to up to 12 weeks of unpaid leave during any 12-month period. But, under the NJFLA, employees who have been employed for 12 months and have worked at least 1,000 hours during the preceding 12 months are entitled to a maximum of 12 weeks leave during a 24-month period. The most notable difference between the two statutes, however, is that the NJFLA provides leave to employees only to care for seriously ill family members and not for the employee's own serious health condition, while the FMLA provides leave for both situations.
New NJFLA Regulations
The new NJFLA amendments provide additional guidance for employers. Specifically, the new regulations:
Broaden employer discretion in calculating the 24-month period during which employees may take leave. Employers may calculate an employee's leave eligibility based on the calendar year, the fiscal year, or a rolling period measured backwards from the date the employee's leave begins. (It is essential for employers to identify in writing the method by which they calculate leave because an employer's failure to specify will, by default, result in application of the method of calculation most favorable to the employee);
Amend the definition of base hours to include all hours the employee would have worked had he or she not been absent due to military service;
Require covered employers to notify employees of their family and medical leave rights by displaying the official NJFLA poster in the workplace and providing "written guidance" to employees;
Permit employers to transfer employees who request leave on a reduced or intermittent basis to another position with equivalent pay and benefits provided the transfer is not intended to discourage employees from taking leave and does not create undue hardship for the employee;
Increase from 15 to 30 days the notice an employee must give before commencing a covered leave period. (This provision does not apply when an emergency prevents the employee from providing the 30-day notice);
Amend the NJFLA's definition of "serious health condition" to more closely mirror the FMLA definition;
Expand the NJFLA's definition of "care" to include time required to arrange for changes in the care of an ill family member, such as placement in a nursing home;
Clarify that the statute's 50-employee requirement does not apply to public entities which must comply with the NJFLA regardless of the number of employees in their ranks; and
Clarify that an employee who uses 12 weeks of FMLA leave during a 12-month period due to his or her own disability is still entitled to an additional 12 weeks of NJFLA leave within a 24-month period to care for a seriously ill family member or a newborn or recently adopted child.
This last amendment is probably the most significant change because it resolves a previous ambiguity in the law and clarifies that employees may, in certain circumstances, "tack on" their New Jersey family leave entitlements to their FMLA leave. For example, if an employee uses 12 weeks of FMLA leave because of a pregnancy-related disability, she would be entitled to an additional 12 weeks of NJFLA leave to care for her newborn child, assuming she had not previously exhausted her authorized leave during either applicable leave period for some other reason. Similarly, if an employee takes disability leave while pregnant and after the birth of her child, her disability leave counts only against her FMLA entitlement, and she is entitled to take an additional 12 weeks of NJFLA leave to care for her child. Thus, an eligible employee may be entitled to up to 24 weeks of leave during a 12-month period if the requisite conditions are met.
As the number of requests for family and/or medical leave increases, employers will face more frequently the need to comply with both the FMLA and NJFLA. The new amendments in NJ may make that task easier. Those employers that do business in other states are cautioned to become familiar with each state's laws and regulations applicable to medical and family leave because your employees will be entitled to the benefits under both the FMLA and applicable state law. For example, California and the District of Columbia provide enhanced benefits.You should also note that, in most instances, the "protected leave clock" begins to run only after notice has been provided to the employee specifying the designation of his or her leave as family or medical leave under the appropriate statute. Leave under both laws cannot be applied retroactively, except under very limited circumstances. Therefore, delay on the part of the employer in providing the designation notice may entitle an employee to a longer leave than would have otherwise been required by law.
We also note that, although not specifically addressed in the new NJFLA regulations, the new state law permitting same-sex civil unions, which became effective on February 19, 2007, provides same-sex partners with the same family leave rights as married people. Thus, New Jersey employers should be sure to extend NJFLA rights to eligible employees who are committed to their same-sex partners in a civil union.
Finally, you should be aware that a bill is pending in the State Legislature that would make an employee's NJFLA leave to care for a family member with a serious medical condition, in effect, short-term disability, entitling the employee to receive payment under New Jersey short-term disability law. Under the bill, eligible employees would receive disability benefits under the short-term disability law for up to 12 weeks of leave after the birth or adoption of a child, or to care for a family member with a serious medical condition. Notably, the bill does not require employers to pay employees who are out on leave. Rather, the proposed law would require employees to pay a premium of approximately $1 per week in added assessments to cover benefits for time off due to their own disability, or for leave to care for a family member with a serious medical condition, or for the birth or adoption of a child. If this proposal becomes law, employers would most likely see a significant increase in applications for protected leaves of absence because employees will receive disability pay while out on leave. We will continue to monitor this and similar bills, and will let your readers know if and when any such proposal becomes law.
Julie Levinson Werner, Counsel at Lowenstein Sandler PC, Roseland, New Jersey, practices employment and general commercial litigation and is a member of the firm's Employment Law Practice Group and the Employment Litigation Group. Her practice encompasses a wide array of litigation under federal and state laws, including representing management in actions involving claims of discrimination, wrongful termination, and sexual harassment, as well as in contract actions disputes over non-competition and confidentiality agreements, and other business torts. Ms. Werner also counsels employers on various aspects of employer-employee relationships. She has written numerous articles emphasizing litigation-avoidance strategies for employers. She can be reached at (973) 597-2550. George M. Patterson is an Associate in the firm's Litigation Department, where he focuses his practice on the representation and counseling of management in all areas of employment law, including wrongful termination, harassment, discrimination and wage and hour issues. He can be reached at (973) 597-2386.