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

Part Two of a Three-Part Series

An employee who takes leave under the FMLA or the NJFLA is required to be reinstated to his or her job or an equivalent job upon return (unless the position was eliminated for bona fide reasons). Additionally, while an employee is on leave, the employer is required to continue the employee’s health benefits.

Despite the broad coverage of the FMLA and the NJFLA, an eligible employee may be reluctant to take leave. This job insecurity might be increased due to direct or indirect pressure from an employer.

An employer may pressure an employee not to take leave or not to take the full amount of leave available. An employer might indicate that taking leave will hurt an employee’s chances for a promotion. An employer may even falsely tell an employee that s/he is not eligible for leave. Under the FMLA and the NJFLA, it is illegal for an employer to interfere with, restrain or deny an employee the right to take leave. Most importantly, an employer is not allowed to refuse leave to an employee.

The FMLA and NJFLA provide a valuable resource to employees in need of leave from work to take care of a new child or a seriously ill close family member. Whether an employee should take leave, should be decided by the employee, taking into account the necessity of the leave as well as the financial ramifications of unpaid leave. In response to the difficulties of taking unpaid leave, New Jersey has established the New Jersey Family Leave Insurance (“NJFLI”), which provides for paid leave. The NJFLI will be discussed in Part III.

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.