To Take Leave or Not to Take Leave: An Employee’s Dilemma

Part One of a Three-Part Series

As concerns for job security rise, employees are faced with a difficult choice when a personal or family emergency occurs-should I take leave?

The Family Medical Leave Act (“FMLA”) is a federal law that provides for 12 weeks unpaid leave in a 12 month period for 1) birth or adoption of an employee’s child, 2) serious medical condition of a close family member or 4) serious medical condition of the employee. Under the FMLA, if an employer agrees, an employee may even take leave in short periods throughout the year, instead of a solid 12 weeks. To qualify for FMLA leave, employees must work for an employer with 50 or more employees and the employee must have worked for that employer for at least one year and 1,250 hours during that year (a minimum of 24 hours times 52 weeks). As a result of this broad coverage, many U.S. employees are covered by the FMLA and have the option to take FMLA leave.

Many states have enacted statutes similar to the FMLA, such as New Jersey’s Family Leave Act (“NJFLA”). The NJFLA provides for 12 weeks of unpaid leave in a 24 month period. The NJFLA does not provide leave for an employee’s serious medical condition. It does provide leave for 1) birth or adoption of an employee’s child and 2) serious medical condition of an employee’s close family member. Like the FMLA, employees may be permitted to take intermittent leave with employer consent. To be covered, employers must employ at least 50 employees. To qualify for leave, employees must be employed for at least a year by the employer and worked at least 1,000 hours during that year (a minimum of 19 hours times 52 weeks).

To take leave under the FMLA and the NJFLA, employees may also be required to give the employer notice of leave, except in emergency situations. An employer is also permitted to request proof of leave, called a “certification”. For example, an employer may request a doctor’s note as proof of a serious medical condition.

Employees may be eligible for leave under both the FMLA and the NJFLA. Generally, the time period for leave runs simultaneously. However, there are some limited situations where the leave periods might be consecutive. For example, if an eligible employee is seriously ill, s/he could take 12 weeks of unpaid leave under the FMLA. If, after the 12th week, the employee’s spouse becomes ill and the employee needs additional leave, s/he could take 12 weeks of unpaid leave under the NJFLA.

If you or anyone you know could benefit from an in-person consultation regarding FMLA or NJFLA issues and how they may apply to you or your relatives and friends, please do not hesitate to let our office know. We will be happy to set up a confidential appointment to discuss your concerns. Please let us know how we may help you.

Amy Jensen, Esq. (with many thanks for Amy’s superb legal research and primary writing)

Hanan M. Isaacs, Esq.

Keith B. Hofmann, Esq.