Family And Medical Leave Act (FMLA) Retaliation
While the New Jersey Family Leave Act (NJFLA) protects covered workers in covered employment situations who need to attend to family matters, the federal Family and Medical Leave Act (FMLA) goes a bit further.
The FMLA applies to workplaces engaging in commerce with over 50 workers either at that location or within a certain geographical range in the State of New Jersey. It applies to all workers at such locations who have been working for at least a year and have accumulated at least 1250 hours of time within that year.
Once an employer and an employee are covered under the FMLA, the employer must allow the employee up to 12 weeks of unpaid leave to deal with, for example, the birth or adoption of a child, to deal with his or her own “serious” health condition, or to care for an ill close family member. Such leave is also allowable for funerary arrangements or bereavement.
While there are a few narrow exceptions to this general proscription for highly placed executives and certain invaluable members of the company, nearly all other employers and employees who are covered by this law must obey it. While the employer can certainly ask you for a proper application for FMLA leave, and they can certainly ask you for some medical information to substantiate your own need or the need of your family member, they cannot harass you constantly while you are on leave for recertifications, updated medical information or the like. Such is “retaliation” under the FMLA, and in and of itself is as illegal as failing to give initial leave under the FMLA would be.
Employers who retaliate when a worker returns from FMLA leave are also committing FMLA retaliation and are, again, liable for damages under that law, as well as under other anti-retaliation laws in operation in the State of New Jersey.
The key word is “reasonable.” If it is “reasonable,” an employer may ask for occasional information to a certain “level of depth,” but they cannot go on a “fishing expedition” into your medical circumstances or your medical history, and they cannot constantly bother you, harass you and intimidate you while you are on leave or when you return.
While it’s always helpful to actually exercise your rights of the FMLA by saying you want to do so, you might not be aware of your rights. If an employer is covered and you are covered, however, the employer must be aware of your rights and must advise you of your rights even if you don’t know to ask. A failure to do this might result in not only the protected leave being given to you by the court, but the additional leave time that the employer failed to properly designate might be added to it.
It’s important that you understand that while the leave is protected, you are not guaranteed to return to precisely the same job when your leave ends. The employer must return you to either the same job or a comparable job. However, if only a comparable job is available at a reduced rate of income, that might be the best that can be accomplished under the circumstances. Also understand that the leave is unpaid. That means that the employer may properly require you to use paid time off that you’ve accrued, such as vacation or sick time, to offset some of your unpaid leave time. This means that you’ll be paid for some of the time that you’re out, but of course, you’ll lose those accumulated days.
Violations of the FMLA can result in compensatory and consequential economic damages and shifting attorney’s fees.