By Keith Waldman, Esquire*
Keith Waldman is shareholder at Mt. Laurel’s Selikoff & Cohen, P.A., a NJEA approved network firm If you believe you need legal representation in connection with a particular matter concerning your employment, please contact your NJEA UniServ Representative.
I recently represented an NJEA member regarding her return to work from a Family and Medical Leave Act (FMLA) leave of absence. The member had a medical condition and recovered faster than her doctor and she originally expected. The member wanted to return to work from leave approximately two months early. The school district had contracted to hire a long-term substitute and told the member that it would not be possible for her to change her return-to-work date.
The school district did not take the provisions of the FMLA and its regulations into account. One of those regulations provides that an employee may not be required to take more leave than the medical condition requires and that when an employee’s circumstances change, the employee may change the return-to-work date upon reasonable notice to the employer.
Fortunately, the school district had knowledgeable legal counsel and, when the issue was presented to the district’s lawyer, the matter was resolved with the member’s returning to work earlier than initially requested.
As an NJEA member, you have a team of people with years of experience behind you. You should reach out to your local leadership and to your UniServ Representative. They can review your leave plans with you and assist you in framing your leave requests
Leaves under the FMLA, the New Jersey Family Leave Act (NJFLA), contractually-available leaves and insurance payments under the New Jersey Paid Family Leave Insurance Act (NJPFLIA) can present a confusing thicket for most people. Some employers entrust the processing of leave requests to human resources personnel without providing them adequate training.
The school district personnel may have been confused by the special rules that apply to K-12 instructional employees even though those rules did not apply to this member’s situation. For example, when an instructional employee begins a leave more than five weeks before the end of a term, an employer may require the employee to continue taking leave until the end of the term if the leave will last at least three weeks, AND the employee would return to work during the three-week period before the end of the term. For another example, special rules also apply to K-12 instructional employees giving birth, adopting or fostering during the five-week period before the end of a term when the leave will last more than two weeks, AND the employee would return to work during the two-week period before the end of the term. Yet other rules apply to K-12 instructional employees who begin certain leaves during the three-week period before the end of a term.
In requesting contractual and family and medical leaves, you should sit down and map out what dates you would like to take. In doing so, you should bear the following in mind:
• Contractual sick leave does not always have to run at the same time as FMLA leave. By contract and practice, in many school districts, contractual and FMLA leaves do not run at the same time.
• Depending upon how the leave is structured, a member who is out on medical and then family leave for child birth and then child care is usually entitled to more than 12 weeks of leave.
• Most members choose to use paid sick leave first, and it is a good idea to reserve a few sick days.
As an NJEA member, you have a team of people with years of experience behind you. You should reach out to your local leadership and to your UniServ Representative. They can review your leave plans with you and assist you in framing your leave requests. If needed, your UniServ Representative can refer you to an NJEA Network Attorney for further assistance.
It is your leave. Know your rights.