By Louis P. Bucceri, Esq.
The need to take care of our families is one of the core motivations of people everywhere. The conflict between work and that need is the reason for the federal Family and Medical Leave Act (FMLA) and New Jersey’s Family Leave Act (NJFLA). This article addresses unpaid FMLA and NJFLA. Next month we’ll look at family leave insurance.
The FMLA guarantees up to 12 weeks of unpaid leave during a 12-month period either for an employee’s own disabling serious health condition, or to care for a family member. The family leave aspect of the law applies when you need to deal with the serious illness of a family member or require a leave for child-rearing within a year after the birth or the placement of a child in your care as an adoptive or foster parent.
The NJFLA permits up to 12 weeks of unpaid leave during a 24-month period, but only to care for a seriously ill family member or for the birth or placement of a child in your care as an adoptive or foster parent. For employees or their family members who are victims of domestic violence or sexually violent offenses, 20 days of leave are permitted within a year. NJFLA may not be used for the employee’s own illness or disability, unless it is due to such violence.
In both FMLA and NJFLA, the amount of leave time allotted is the total time to which an employee is entitled in the 12- or 24-month period. The employee is not entitled to additional time for a new event. For example, if an employee exhausts their leave time to care for a seriously ill parent, additional leave time is not extended if the employee becomes a parent within the FMLA 12-month period or the NJFLA 24-month period.
Leaves for illness under the FMLA and NJFLA can only be taken to care for serious illnesses or injuries that require inpatient care in a hospital, hospice, or residential medical care facility, or conditions requiring continuing medical treatment or continuing supervision by a health care provider.
Qualifying for FMLA leave requires that you have worked for your employer at least 1,250 hours during the last 12 months. The NJFLA requires only that you have worked for that employer for 1,000 hours during the last 12 months. NJFLA leave automatically runs simultaneously with family leave taken under the FMLA.
Leave on a reduced (intermittent) schedule for a family member’s serious health condition or to care for a new child is possible. All such intermittent leave must be taken within 12 consecutive months from when the leave begins. An intermittent leave request must normally be given with 15 days’ notice, absent an emergency. Thirty days’ notice of an intended continuous leave for child-rearing must be given to an employer or a loss of some benefits may result. The only exception is when unexpected circumstances move up the birth or placement of the child, then reasonable notice is sufficient. As to a domestic or sexual violence leave, only “reasonable and practical” notice is required, absent an emergency. As noted, that form of leave is limited to 20 days within a year.
The NJFLA defines “child” as any biological or adopted child, as well as a foster child, resource family child and a legal ward. It also includes a child who becomes a child of a parent because of a written agreement with a gestational carrier. Family leave may be taken to care for the serious medical condition of a child of any age.
The definition of “family members” for whom care, due to a serious illness, may be given includes all children, parents-in-law, grandparents, grandchildren, domestic partners, any individual related by blood, or anyone else who can be shown to have a close relationship that is the equivalent of a family relationship. Note that a child-rearing leave—not associated with a child’s illness, following birth or placement—can only be taken for a child of the employee by birth (including by contract with a surrogate), or placement through adoption or foster care. Leave for child-rearing must begin within one year of birth or placement.
The type of “care” for which leave can be taken can mean, but is not limited to, physical care, emotional support, visitation, assistance in treatment, transportation, arranging for a change in care, assistance with essential daily living matters and personal attendant services.
While you are using FMLA or NJFLA leave your employer must continue your health insurance on the same terms as were in effect while you were working. This means you must pay your monthly insurance contribution, sometimes in advance, even though you are not earning a salary. If you do not return to work after the leave, your employer may demand payment for the health insurance premiums it paid during the leave.
State payments, similar to unemployment benefits, may be available to employees taking unpaid family leaves. As always, consult your NJEA regional UniServ office for detailed information to ensure you will enjoy the full benefit of the laws on family leave.
Louis Bucceri, Esq., is a partner at Bucceri Pincus. He is one of NJEA’s network attorneys.