Federal Family And Medical Leave Act (FMLA)
The federal Family and Medical Leave Act applies to nearly all employers in the State of New Jersey, with the exception of certain entities that exclusively employ state workers. It covers employers that have at least 50 employees at the applicable worksite, or within a particular geographic range. It applies to all workers who have been on the job for at least one year and have accumulated at least 1,250 hours during that time.
The Act requires that an employee be given up to, but not more than, 12 weeks of unpaid leave, along with job protection upon his or her return, for certain purposes. These purposes include, but are not limited to, the attendance to one’s own “serious” health condition, the need to care for an ill parent, immediate family member or child, the need to deal with the birth or adoption of a child, or the death of an immediate family member.
The leave is “unpaid,” but if you have accumulated paid time off, your employer can, with or without your consent, force you to credit that paid time off against some or all of your leave. The good part about this is that you’ll be paid for some of your leave time, but the bad part is that you’ll lose accumulated paid time off.
An employer is required to post your rights about this Act in the workplace and is required to open a dialogue with you when you ask about potential leave covered by any of the above purposes — even if you don’t yourself mention the FMLA or even if you are unaware of your rights under the FMLA. It’s your employer’s obligation, if they are covered and you are covered, to mention this act to you, and to assist you in completing the necessary paperwork.
When you return from leave, the employer must return you to the same job or to a closely comparable job, although there’s no guarantee that job may pay quite the same or carry the same title or benefits as your former job. The only way an employer who is covered can deny this leave or require that the leave be shorter is if the employee is an “essential” employee, such as a highly placed or unique executive.
While an employer is certainly allowed to ask you for some reasonable documentation about your own or someone else’s serious health condition in order to justify the leave, they do not have the right to go on a deep, penetrating “fishing expedition” about your medical records or your family members’ medical records. They don’t have the right to continually harass you during the time that you take the leave to ask for unnecessarily penetrating or duplicative medical information. They don’t have the right to constantly harass you and ask you, “When are you coming back?” They don’t have the right to harass you upon your return or discriminate against you upon your return simply because you took your rights under the Act.
The FMLA provides for anti-retaliation protection. If you are subjected to a hostile working environment, either while you were on leave or after you returned, because you asserted your rights, you have the right to recover damages, just as you do if you are unfairly demoted, transferred, disciplined or wrongfully discharged shortly after you return from your leave. This is true even if your employer states another reason for these actions, because it probably is exactly what it looks like retaliation for you having asserted your rights under the Act.
While “intermittent” or “occasional” leave is permissible under the Act, it is not required that an employer entertain it. If an employer decides it does not want to grant intermittent leave, then an employer can decide not to do so and can insist that any leave taken be taken in “blocks” of time that do not create an undue burden. On the other hand, if an employer allows an employee to take “intermittent” leave and documents the same, then that employee is free from any retaliation, workplace harassment or other discrimination as a result of having taken that intermittent leave.
FMLA actions can be brought in either state or federal court, and the Mount Laurel employment and civil rights attorneys at Costello, Mains & Silverman, LLC, have handled many of these cases. We know how to obtain the maximum damages due to you when your rights are violated under the FMLA.