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

Last of a Three-Part Series

Previously, we discussed an employee’s right to take unpaid leave under the Family Medical Leave Act (“FMLA”) and New Jersey Family Leave Act (“NJFLA”). In New Jersey, there is an additional leave option for employees, paid leave under New Jersey Family Leave Insurance (“NJFLI”).

The NJFLI went into effect on July 1, 2009 and is financed through employee payroll deductions. The NJFLI provides employees with 6 weeks of paid leave over a 12 month period for the 1) birth of a child by an employee, 2) adoption of a child by an employee and 3) serious medical condition of an employee’s close family member. An employer is required to continue medical benefits during the NJFLI leave period. To qualify for paid leave under the NJFLI, the employee must be employed in New Jersey. All New Jersey employees and employers are covered under the NJFLI. Under the NJFLI, when medically necessary, an employee may be permitted to take leave intermittently, that is, the employee may take short periods of leave throughout the year, as opposed to one solid 6 week period. However, intermittent leave must be taken in week-long intervals.

To take leave under the NJFLI, an employee is required to give an employer at least 30 days notice, barring any emergency situations. An employee must also file a claim for NJFLI. After filing a claim, there is a seven day period called the “waiting week” during which the employee does not receive any Family Leave Insurance benefits.

An employee is also required to provide certification from a health provider to the employer upon request. For example, the certification for a serious health condition of a family member generally needs to include the probable duration of the condition, a statement that the medical condition requires that the employee take leave and the estimated amount of time that the employee would need to take leave.

Employers are permitted under the NJFLI to require employees to use up to 2 weeks of paid sick leave, paid vacation time, or other leave at full pay. The leave funded by NJFLI is then reduced so that the maximum total of paid leave available is still 6 weeks. For example, if an employee is required to use 2 weeks of paid vacation prior to using NJFLI leave, the employee would take 2 weeks of paid vacation through the employer and then take 4 weeks of paid leave through the NJFLI. A total of 6 weeks of paid leave is maintained. The only difference is the funding source of the paid leave. As with the FMLA and NJFLA, an employer is not permitted to refuse leave to an employee under the NJFLI.

An employee is never required to take leave under the NJFLI. However, any leave taken under the NJFLI must be taken concurrently with the NJFLA and the FMLA. What this means is that if an employee chooses to take 6 weeks paid leave under the NJFLI, the leave available under the NJFLA and FMLA is reduced by 6 weeks. Generally, an employee may only take a total of 12 weeks of leave. The employee is not entitled to 12 weeks of unpaid leave after taking 6 weeks of paid leave. Generally, an employee is entitled to a maximum of 12 weeks leave. The only exception is if an employee takes leave under the FMLA for a personal serious medical condition, which is not covered by the NJFLA or NJFLI (See Part I).

Although the leave coverage is quite expansive under the NJFLI, an employee might be reluctant to take paid leave under the NJFLI. This reluctance is primarily because an employer is not required to reinstate an employee who returns from leave under the NJFLI. Therefore, an employee who takes leave under the NJFLI will receive 6 weeks of paid leave, but is not guaranteed his/her position upon return from leave.

When an employee decides to take leave in New Jersey, s/he may choose to take leave under the FMLA, NJFLA, or NJFLI. Each leave option has benefits and drawbacks that an employee should consider to determine the best type of leave for his or her unique personal and financial situation. Ultimately, and regardless of which leave the employee chooses to take, an employer is not permitted to interfere with the employee’s exercise of his or her leave choice.

If you or anyone you know could benefit from an in-person consultation regarding FMLA, NJFLA, or NJFLI 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.