Like all legal matters, the answer depends on the situation. You may face competing family, financial, work, and legal responsibilities. How you juggle these demands falls on you, your priorities, when and if you have a legal right to care for a child, the importance of your job, and the potential penalties for not caring for your child.

If your employer tells you that you can’t take off to care for your child and no one else is available, here are some legal issues to consider.

Federal Family Medical Leave Act (FMLA)

This law provides eligible workers of covered employers with job-protected leave for qualifying family and medical reasons. FMLA leave may be paid or unpaid. When employees return to work after FMLA leave, they must return to the same or a nearly identical position.

You may have a federally protected right to take time off to care for your child if the law covers you, your employer, and your child’s illness. Employees are eligible when:

• They work for a covered employer
• For at least 12 months
• Have at least 1,250 hours of service with their employer during the 12 months prior to the start of their FMLA leave and
• Work where the employer has at least 50 employees within 75 miles

Employers are covered under the following circumstances:

• They’re in the private sector and employ 50 or more employees during 20 or more workweeks in the current or previous calendar year
• Public agencies, no matter how many they employ, and
• Local, private, and public educational agencies, no matter how many they employ

Leave can be for caring for a child, spouse, or parent with a serious health condition. That generally involves a period of incapacity. That means the person can’t work, go to school, or perform other regular daily activities because of their health condition, treatment, or recovery.

Eligible employees may use up to 12 weeks of FMLA leave in 12 months for any FMLA leave reason except military caregiver leave.  You can take FMLA all at once, break it up, or reduce your schedule.

The New Jersey Family Leave Act (NJFLA)

Like the FMLA, but based on state law, you may have a protected right to take time off to care for your child if you, your employer, and your child’s illness are covered.

The state’s family leave law allows eligible employees of covered employers to use up to 12 weeks of protected leave in a 24-month period to care for a family member or your relationship is close to that of a family.

The NJFLA allows eligible workers to care for a family member or someone who’s the equivalent of a family member under the following circumstances:

• They have a serious health condition
• During a state of emergency
• They’re quarantined or isolated due to suspected exposure to an infectious condition
• You’re providing needed care or treatment for a child if their place of care or school is
• closed due to an order of a public official because of a contagious disease, epidemic, or other public health emergency

A “serious health condition” is an injury, impairment, mental or physical condition which requires:

• Care from an inpatient hospice, a hospital, or a residential medical care facility, or
• Continuing medical care or supervision by a healthcare provider

An NJFLA “eligible employee” is one who:

• Works full- or part-time
• For a local or state government agency that has at least one employee or
• For an organization or company with 30 or more employees anywhere
• Has worked for their employer for at least a year
• Has worked at least 1,000 hours in the prior 12 months

The NJFLA offers wider coverage than the FMLA but doesn’t include all employees.

Potential Criminal Charges for Not Caring for Your Child

Parents feel pressure to care for their children, even if the boss says “Go to work.” This may or may not be an actionable claim under New Jersey and federal employment law statutes, yet failing to take care of a sick child could be a violation of civil and criminal law. The New Jersey Statutes state in part, “Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child…is guilty of a crime of the second degree.”

Relevant parts of other state laws include:

• “Abandonment of a child shall consist in any of the following acts by anyone having the custody or control of the child: (a) willfully forsaking a child; (b) failing to care for and keep the control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficient protection… Neglect of a child shall consist in any of the following acts, by anyone having the custody or control of the child…willfully failing to provide proper and sufficient…medical attendance or surgical treatment…or …failure to do or permit to be done any act necessary for the child’s physical…well-being.”
• “Any parent, guardian or person having the care, custody or control of any child, who shall… abandon, be…neglectful of such child, or any person…neglectful of any child shall be deemed to be guilty of a crime of the fourth degree.”
• ‘”Abused or neglected child” means a child less than 18 years of age whose parent or guardian… whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian…to exercise a minimum degree of care…in supplying the child with adequate…medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so…”’

A second-degree criminal conviction in New Jersey would result in a prison sentence of five to ten years, a fine of up to $150,000, and a criminal conviction on your record. A fourth-degree crime calls for a sentence of up to 18 months in prison and a fine as high as $10,000. You would also risk losing custody of your child, whether through legal action by the state or the other parent or guardian, any of whom could file a legal action in family court.

Contact Kingston Law Group

Kingston Law Group handles matters involving the federal Family and Medical Leave Act, the New Jersey Family Leave Act, allegations of child neglect, and custody matters. If you seek or obtain either kind of family medical leave and management punishes you in response, you may be entitled to compensation through a retaliation claim.

If you are stuck in this no-win situation, please contact our Central Jersey law office at 609-683-7400 toll-free to arrange a consultation so you can make the best choice possible. We accept credit cards and offer general appointments from 9 a.m. to 5:30 p.m., Monday to Friday, or pre-arranged evening appointment times.