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Tuesday, March 20, 2018

What are the differences in the FMLA and New Jersey's FLA?

The Federal Family Medical Leave Act (FMLA) and New Jersey’s Family Leave Act (FLA) are very similar in that qualified employees working for employers who are covered under the Acts, are allowed time off work in order take care of certain family members. In some situations, the leaves are for the same purpose and therefore run concurrently. However, in other situations the employees would be entitled to take separate leaves.

To maximize your amount of leave, if you are a New Jersey employee, you should combine entitlements under both the FLA and FMLA where allowed.

The main difference is that the FMLA allows a qualified employee who is working for an employer covered the FMLA to take time off work because of the employee’s own disability or medical condition which renders him/her temporarily unable to do their job, while the FLA does not. If you require time off because of your own disability or medical condition that renders you to be temporarily unable to work, that leave would be allowed under the FMLA, not the FLA. If you need other time off to take care of a family member, you would still be allowed twelve weeks of leave to take care of the family member under the FLA. Likewise, if you took time off under the FLA to care for a family member, and then you need time off because of your own disability or medical condition, you would be allowed additional leave because of your own medical condition under the FMLA, because the FLA would not apply to that situation.

Comparison of the FMLA and the FLA

A partial comparison of language in the statutes, the FMLA and FLA, is illustrative as to similarities and differences:

Entitlement to leave: Under the FMLA, subject to section 103, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period. However, under the FLA, an eligible employee shall be entitled to a total of 12 weeks of leave in any 24-month period.

Note that how employers may calculate the 12 and 24 month period may vary and that will be discussed a different blog.

Both the FLA and the FMLA require that the employer must employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the then current or immediately preceding calendar year.

Under the FLA, an eligible employee means a person who is employed for at least 12 months by an employer, for not less than 1,000 base hours during the immediately preceding 12-month period.

However the FMLA differs in that under the FMLA, an eligible employee must be one who has been employed for at least 12 months by the employer; and for at least 1,250 hours of service with such employer during the previous 12-month period. Also different, is that under the FMLA, excluded is any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.

Under the FLA, the term "parent" means a person who is the biological parent, adoptive parent, resource family parent, step-parent, parent-in-law or legal guardian, having a "parent-child relationship" with a child as defined by law, or having sole or joint legal or physical custody, care, guardianship, or visitation with a child. Under the FMLA, the term "parent" means the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter. Note that under the FMLA, a parent-in-law is not included in the definition of “parent”. 

The actual wording of the two statutes as to entitlement to leave is, in part, as follows:

Family Medical Leave Act (the federal statute)

LEAVE REQUIREMENT

(a) In General. --

  (1) Entitlement to leave. Subject to section 103, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:

      (A) Because of the birth of a son* or daughter* of the employee and in order to care for such son or daughter.

      (B) Because of the placement of a son or daughter with the employee for adoption or foster care.

      (C) In order to care for the spouse**, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

      (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

  (2) Expiration of entitlement. The entitlement to leave under subparagraphs (A) and (B) of paragraph (1) for a birth or placement of a son or daughter shall expire at the end of the 12-month period beginning on the date of such birth or placement.

((b) Leave Taken Intermittently or on a Reduced Leave Schedule. --
  (1) In general. Leave under subparagraph (A) or (B) of subsection (a)(1) shall not be taken by an employee intermittently or on a reduced leave schedule unless the employee and the employer of the employee agree otherwise.

*The FMLA further defines “Son” or “daughter” as follows: The term "son or daughter" means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is –

      (A) under 18 years of age; or

      (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.

**The FMLA further defines "Spouse" as follows: The term "spouse" means a husband or wife, as the case may be.

Note, the above list of definitions is not all inclusive and there are other exclusions, requirements and differences in the statutes.

The Family Leave Act (New Jersey’s statute)

§ 34:11B-3. Under the FLA, purposes for the leave are defined as:

(i.) “Family leave” means leave from employment so that the employee may provide care made necessary by reason of:

      (1) the birth of a child of the employee;

      (2) the placement of a child with the employee in connection with adoption of such child by the employee; or

      (3) the serious health condition of a family member*** of the employee.

§ 34:11B

      b. In the case of the birth or adoption of a healthy child, the leave may be taken intermittently if agreed to by the employer and the employee.

      c. Leave taken because of the birth or placement for adoption of a child may commence at any time within a year after the date of the birth or placement for adoption.

***The FLA defines "Family member" to mean a child, parent, spouse, or one partner in a civil union couple.

To maximize your amount of leave, you should combine entitlements under both the FLA and FMLA where allowed. 

When the employee requests leave under the FMLA and further additional leave under the FLA, the leave simultaneously counts against the employee's entitlement under both laws as follows: 

    1. If an employee first takes FMLA leave because of his or her own disability, the employee would be entitled to an additional 12 weeks of leave within 24 months under the FLA to care for a newborn, or to care for a seriously ill family member, because the prior disability FMLA leave was taken for the employee's own medical needs, i.e., for a purpose that is not covered by the FLA.

   2. If an employee takes FMLA leave because of his or her own disability and a family member becomes seriously ill or a child is born or adopted while he or she is still out on FMLA disability leave, the intervening birth, adoption or serious family illness does not convert the FMLA leave to a leave under the FLA. For as long as the employee continues to be eligible for FMLA leave based on his or her own disability, the leave does not simultaneously count against the employee's entitlement under the FLA.

Note, the above list of definitions is not all inclusive and there are other exclusions, requirements and differences in the statutes.

What You Can Do.

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing disabled persons, employees on FMLA and FLA 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.

To explore your legal options, contact Hope A. Lang, Attorney at Law today for a free consultation.

New Jersey employment attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, 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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