The Federal Family and Medical Leave Act (FMLA)

The Federal Family and Medical Leave Act (FMLA) requires employers of 50 or more employees to give up to 12 weeks of unpaid, job-protected leave to eligible employees for the birth or adoption of a child or for the serious illness of the employee or a spouse, child or parent. It also requires that their group health benefits be maintained during the leave. The main difference between the federal FMLA and the New Jersey Family Leave Act (NJFLA) is that the federal FMLA provides protected medical leave to the employee themselves, whereas the NJFLA only extends protected leave for the employee’s family member. FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees.

Eligible Employees under the FMLA

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.
Intermittent Leave under the FMLA

Under some circumstances, employees may take FMLA leave intermittently, meaning taking leave in separate periods of time for a single qualifying reason, or on a leave schedule that reduces the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation. If FMLA leave is for birth and care, or placement for adoption or foster care, use of intermittent leave is subject to the employer’s approval. A physician’s certification is necessary to apply for such leave or if reasonable safety concerns exist, return from such leave.

A “Serious Health Condition”

“Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either: (1) Inpatient care in a hospital, hospice, or residential care facility, including any period of incapacity or subsequent treatment in connection with such inpatient care; or (2) Continuing treatment by a health care provider, which includes: (a) period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also includes: treatment two or more times by a health care provider or one treatment by a health care provider with a continuing regimen of treatment; or (b) any period of incapacity related to pregnancy; or (c) any period of incapacity or treatment for a chronic serious health condition which continues over an extended period of time, requires periodic visits (at least twice a year) to a health care provider, and may involve occasional episodes of incapacity; or (d) a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective; or (e) any absences to receive multiple treatments for restorative surgery or for a condition that would likely result in a period of incapacity of more than three days if not treated.

Notice Requirements under the FMLA

Employees seeking to use FMLA leave are required to provide 30 days of advance notice of the need to take FMLA leave when the need is foreseeable. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable, meaning generally, either the same or next business day. When the need for leave is not foreseeable, the employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. Employees must provide sufficient information for an employer reasonably to determine whether the FMLA may apply to the leave request. Depending on the situation, such information may include that the employee is incapacitated due to pregnancy, has been hospitalized overnight, is unable to perform the functions of the job, and/or that the employee or employee’s qualifying family member is under the continuing care of a health care provider. Employees do not have to forfeit their privacy (HIPPA) rights and disclose their diagnosis of their condition. When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA.

Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under the FMLA. When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA purpose, the employer must notify the employee of his or her eligibility to take leave, and inform the employee of his/her rights and responsibilities under the FMLA within five business days. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave within five business days.

The Physician’s Certification Requirement

Employers may require that an employee’s request for leave due to a serious health condition affecting the employee or a covered family member be supported by a certification from a health care provider.
Job Restoration

Upon return from FMLA leave, an employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
If your employer is interfering with your right to medical leave or retaliating against you for exercising such right, contact an experienced employment lawyer at Kurkowski Law today.