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Wednesday, January 3, 2018

I Work for a Small Employer, Can I Get Time Off for My Own Medical Condition?

It comes as a surprise to many that the Family Medical Leave Act (FMLA) which grants family and temporary medical leave under certain circumstances, does not apply to all employers and that not all employees are covered under the Act.

Which Employers Are Required to Give FMLA Leave?

For the FMLA to apply, the employer, if a private employer, must have 50 or more employees. Private employers with fewer than 50 employees are not covered by the FMLA, but may be covered by state family and medical leave laws.

However, if you are an employee for a government agency, including elementary and secondary schools, local, state and government agencies, the FMLA applies to all such employers, regardless of the number of employees.

If My Employer Has over 50 Employees, Does That Mean I Will Be Allowed FMLA Leave?

Persons have come to me assuming that if they work for a large employer, they will automatically be entitled to leave under the federal Family Medical Leave Act (FMLA). Unfortunately, that is not necessarily true. In addition for criteria for the employers to be an employer who is covered under the FMLA, there are criteria also as to which employees are eligible to take leave under the FMLA, even when the employer itself is a FMLA covered employer.


  • First, your employer must have at least 50 employees within 75 miles of your worksite. So even if your employer is quite large but is spread out over a large geographic area so that there are not 50 employees within 75 miles of where you actually work, you will not be eligible to take FMLA leave
  • Second, you must have worked for at least 12 months for the employer with respect to whom the FMLA leave is requested 
  • Third, you must have worked for this employer for at least 1250 hours in the 12 months immediately prior to when you take leave. Therefore although you must have worked for your employer for at least a total 12 months, you do not have to have worked for that same employer 12 months in a row (seasonal work does count toward the 12 month total.)That works out to an average of approximately 24.04 hours per week over the course of a year.
  • Fourth, however, if you have a break in working for that employer that lasted more than seven years, you generally cannot count the period of employment prior to the seven-year break.

(Note: there is a special rule applies to the hours of service requirement for airline flight crew employees, including flight attendants, flight engineers pilots, co-pilots. However, the special rule does not apply to other airline employees of the airlines, such as employees in the reservations and baggage departments.)

Is There Anything I Can Do If I Work for a Small Employer Who Is Not a Covered Employer under FMLA, and I Need Time off for My Own Medical Condition?

Yes, it is possible in some circumstances if you are a person with a disability, even if it is not a permanent disability, that you might be eligible for a reasonable accommodation allowing you to take time off under the New Jersey Law Against Discrimination (NJLAD) which applies to all employees and all employers regardless of size. There are also federal laws offering some job protections, but Courts have interpreted the NJLAD to encompass a very broad definition of “disability” under the statute, and the disability may be temporary or permanent.

Under the NJLAD, employers are required to make “reasonable accommodations” ( New Jersey courts following the language of the federal statute, the Americans with Disabilities Act) to enable a person with a disability to remain employed. Allowing some time off for medical leave under some circumstances may be a reasonable accommodation, depending on the size of the employer, whether the type of work that the employee is engaged in, is specialized, critical to the business functions, or unique, etc. Every case is fact specific.

If You Are Thinking of Simply Resigning.

If you are thinking of simply resigning because your employer is not covered under the FMLA and you need time off because you have a disability or serious health conditions that prevents you from working for temporary periods, you should contact an attorney experienced in employment law before you do so, to explore your legal options in the safest way for you.

What You Can Do.

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing disabled persons, employees on FMLA leave, pregnant women, and related issues. If you find yourself in a situation with inadequate job security for disabled employees, if you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in discrimination.

If you are being subjected to workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, western and northern NJ to meet with clients.

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