Answers to Your Questions about the Federal and New Jersey Medical Leave Act (FMLA)

HNW Business Law, Employment Law

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Employment Law Attorney

Certain employers under this law are required to provide the opportunity for an employee to take leave from the company.  Employees who qualify may take family leave of a period of no more than 12 weeks over the span of 24 months.  Family leave is often taken when a worker is pregnant, but can also be taken to take care of a sick child who is in the hospital or has a serious, chronic health condition.  The leave does not have to be paid for by the company, but nonetheless must be given if the employee qualifies.  This article will discuss the applicability of the Act, along with options you may consider when taking leave.

Basic Qualification Requirements

The FMLA only applies to employers who have 50 or more employees.  This exception does not apply with public agencies, which are covered under the FMLA regardless of the number of employees that work with them.  Schools, whether they are public or private or if they are elementary or secondary, fall under this exception.  The FMLA also applies to employees who have been employed by the same employer for 12 months or more, and during the previous 12 months, worked a minimum of 1,000 hours.  Assuming a 40-hour workweek, this means that the employee would have been working 25 weeks with the employer.  If one of these requirements is not met, then the FMLA does not apply.

What Situations Require the FMLA?

There are four different situations where you can receive protection under the FMLA:

  • For the birth of the employee’s child or to care for the newborn
  • For the adoption or foster care of the employee’s son or daughter
  • To care for an employee’s child, parent or spouse with a serious health condition
  • The employee’s own serious health condition renders him unable to perform necessary job functions.

Our New Jersey state regulations have defined the term “serious health condition” as a physical or mental ailment that requires either inpatient treatment at a hospital or requires continued medical treatment or supervision by a health care provider.  So for example, if the employee’s child got pregnant, and became incapacitated as a result, the employee could request FMLA to be with the child.  One of our clients is a school who employs a teacher that has a child with special needs, and the teacher was coming in late certain days of the week so she may bring a child to the special needs school.  The school is specialized to deal with special needs students and includes medical professionals to take care of the children, so it is likely that an argument could be made that the FMLA could be requested to allow the mother to bring her child to this school.

Is Taking FMLA a One-Shot Deal, or Can it be Broken Up?

The short answer here is that it can be broken up, and if your leave lasted less than the full time granted to you under the Act, then you still have the remaining leave left to use if you need it.  You are also allowed to take leave through an intermittent or reduced leave schedule.  Under an intermittent leave schedule, you take leave in separate intervals of time through the workweek.  If you wish to work part-time instead of full-time or work less days of the week, you may also ask for a reduced leave schedule.  Communicating with your employer about what needs to be done and how leave should be taken is critical.

In our earlier case, the teacher would seek to have intermittent leave of 20-30 minute intervals in the mornings when she is dropping her child off to school.  Interestingly, the issue of whether chronic lateness can qualify for FMLA has been a subject of debate between the different federal courts.  A federal district court in Maine ruled that chronic lateness that requires leave for the duration of the lateness is not covered under the FMLA, no matter if there is a medical condition or not, stating that this leave “trivializes the purpose of the Act.”  Another federal court in Illinois disagreed with the Maine court, stating that the FMLA was meant for medical conditions, and if it meant the absence would result in some lateness in the morning with little notice, it would be considered covered under the FMLA.  No court in New Jersey has ruled on this issue, but you can see the disagreement courts have on this issue.

What Are My Responsibilities as an Employee?

Employees are required under the law and regulations to provide 30 days advance notice prior to taking their leave.  Employees are also required to make a reasonable effort to schedule leave so as not to “unduly disrupt” the employer’s operations.  Employers may be required to provide you leave, but you need to work with them so that way you are not hurting them.  Taking leave when you are needed the most is not a wise idea not only legally but also practically for your career and opportunities to advance in the company.

One way companies and employees can work together to ensure the employee may take leave without it being a major hindrance to the company is to transfer the employee to a different position temporarily until the need for the FMLA goes away.  The law, however requires that this new position have the same pay and benefits as the current position and the transfer is not meant to be a hardship on the employee taking the leave to discourage him or her from using this leave.

To discuss your NJ Employment Law matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

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