The Family and Medical Leave Act (FMLA) is a federal labor law which was passed in 1993. The FMLA requires employers that are covered prove their employees with job protections and unpaid leave for qualified medical and family circumstances.
The FMLA provides protections and rights related to medical leave for employees. It may also provide unpaid leave up to 12 weeks.
In addition, the FMLA requires that a covered employer preserve the eligible employee’s health benefits as if they were still actively working. During their leave time, the employee’s position is protected and they cannot be terminated.
The FMLA, because it is a federal law, preempts state laws even when those laws conflict with each other. This means that an employee in a state which offers little to no family and medical leave may still be protected under the FMLA.
Certain states may have laws which provide more coverage, depending upon the health or medical circumstances of the employee. Most states, however, do not provide more leave than that which is required by federal law.
Do All Employers Provide Under the FMLA?
It is important to be aware that not all employers are required to provide the benefits which are required by the FMLA. Federal law provides that employers are required to provide all eligible employees with leave if that employer meets one of the following criteria:
- The employer is a local, state, or federal governmental agency;
- The employer is a private business which conducts interstate commerce and has fifty or more employees that work twenty or more weeks in one year; or
- The employer engages in commerce or an industry which affects commerce. It is important to note that almost every business meets the requirement for being in commerce or affecting commerce.
Employers have certain specific responsibilities under the FMLA. For example, employers are not permitted to terminate employees who take family or medical leave for any reason as provided by the FMLA.
Employees who are working for employers that are covered by the FMLA have rights under federal law to take leave if they qualify. An employer is not permitted to reprimand the employee for taking leave they are permitted to take and the employer is not permitted to discriminate when granting leave under the FMLA.
What is the Employee Eligibility Under the Family and Medical Leave Act?
In order for an employee to be eligible for coverage under the FMLA, the employee must have:
- Worked for the employer for the last 12 months;
- Worked at least 1,250 hours over the last 12 months; and
- Been employed by an employer which is covered under the Family and Medical Leave Act.
In addition to meeting the criteria listed above, the employee is required to have a qualifying life event occur which would trigger a need for the FMLA. Examples of qualifying life events include:
- The birth and care of a newborn child;
- The placement of a fostered or adopted child who was placed within 1 year since applying for leave;
- Caring for an immediate family member with a serious health condition;
- The employee has a serious condition that makes them unable to perform essential functions of their job, including pregnancy or prenatal care; and/or
- The spouse, child, or parent of the employee is an active military member and is called to active duty.
In addition, an employee may take up to 26 weeks of leave in 12 months if they take that leave in order to care for an individual who has experienced a serious injury or illness and is a:
- Parent; or
- Next of kin who is a service member.
In general, however, each employee is limited to up to 26 weeks of combined leave over a 12 month period. An eligible employee is entitled to take time off in order to care for themselves or family members.
If an employee is eligible, they are entitled to some of the following benefits:
- Twelve weeks of unpaid leave;
- Medical benefits during their leave; and
- The restoration to their original position once they return to work after their leave has ended.
Generally, an employee cannot lose their job if they take leave under the FMLA. In addition, an employer is not permitted to reprimand an employee for taking FMLA leave.
Employers are also prohibited from interfering with the FMLA protected rights of the employee. Employers are not permitted to use FMLA leave as an adverse factor in any future employment evaluations, including promotions or raises.
What is Maternity Leave in New Jersey?
New Jersey has the New Jersey Family Leave Act (FLA) which provides that qualified employees who are pregnant or who have given birth can request leave in order to recover and care for their child. Leave which is granted under the FLA ensures:
- Work protection;
- Work accomodation; and
- Continued health coverage for the employee from the employer while they are on leave.
If the employee qualifies for family leave, they should not hesitate to submit their request for family leave.
Which Employees and Employers Are Qualified?
Employers with at least 50 employees who have worked for at least 20 weeks, inside or outside of New Jersey, are covered by the FLA. Employees are required to have worked for at least one year and have 1,000 work hours before leave begins.
What Are My Benefits Under Maternity Leave?
Under the FLA, qualified employees can receive up to 12 weeks of continuous leave every 2 years. It is important to note that intermittent leave or reduced work schedules are possible under the FLA but the employee is required to ask the employer for approval.
Additionally, qualified employees in New Jersey can also receive employee disability insurance. An employer is not permitted to end any health coverage which an employee was under while they were employed.
Employers are not permitted to terminate employees during their leave. Employers may lay off an employee due to a financial hardship. However, returning employees must have a comparable position or have priority for another position.
How Do I Apply For Maternity Leave?
In order to apply for leave, an employee is required to submit a request to their employer at least 30 days before their leave begins. If it is not possible to provide a 30 day notice, an employee is required to provide notice as soon as possible.
Employers are permitted to ask for medical verification of the employee’s condition but they are not permitted to force the employee to produce it. If this occurs, the employer is required to pay for the verification.
How Do I Get Paid Under the FLA?
Individuals who are employed in New Jersey may apply for a private or state Family Leave Insurance Plan (FLI). It is important to note that employees must have earned at least $145 per week for 20 weeks or have earned more than $7,300 in the previous year in order to qualify.
How Do I Know if My Rights Were Violated?
If an individual’s employer refuses to do any of the following, then their rights have been violated:
- Grant maternity leave without threatening their job security;
- Pay for medical verification when it was specifically requested by the employer;
- Continue the employee’s pre-existing health coverage during their leave; and
- Reinstate the employee’s position after their leave has ended.
Do Homosexuals Benefit from the Family Leave Act?
The New Jersey FLA also applies in cases of adoption. New Jersey recognizes same-sex marriages.
The FLA now applies to heterosexual couples as well as homosexual couples. Homosexual couples are also permitted to take family leave in order to bond with an adopted or fostered child who is under the age of 18.
Do I Need a Lawyer?
If you believe your employer may have violated your rights, it is important to consult a New Jersey discrimination lawyers. Your lawyer can review your case, advise you of your rights under the FMLA and the FLA, and assist you with filing a lawsuit if necessary.