Defense Digest

Careful Scrutiny of Discrepancies Between the Federal Family & Medical Leave Act and the New Jersey Family Leave Act Will Aid Employers in Avoiding Litigation
By Kevin M. Regan, Esq.*

The New Jersey Legislature   

Initially, it should be noted that both the Federal Family & Medical Leave Act ("FMLA"), 29 U.S.C. §2612, and the New Jersey Family Leave Act ("FLA"), N.J.S.A., 34:11B-4, provide for up to 12 weeks of leave from employment during a 12-month period.  However, a side-by-side comparison of the FMLA and FLA reveals a slight discrepancy between the two statutes, and employers should be careful in calculating time accrued under each so as to avoid litigation.  The two statutes read:     

             Federal Family & Medical Leave Act(FMLA)29 U.S.C. §2612:

             a) In general

                         (1) Entitlement to Leave

Subject to Section 2613 of this title, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:

(A)       Because of the birth of a son or daughter of the employee and in order to care for such son or daughter;
(B)       Because of the placement of a son or daughter with the employee for adoption or foster care;
(C)       In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition;
(D)       Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

             New Jersey Family Leave Act N.J.S.A. 34:11B-4:

An employee of an employer in this State, subject to the provisions of this Act, shall be entitled to a family leave of 12 weeks in any 24-month period upon advance notice to the employer, unless the employer denies family leave to the employee pursuant to subsection (h) of this section.

a.         In case of a family member who has a serious health condition, the leave may be taken intermittently when medically necessary [based upon certain conditions];
b.          In the case of the birth or adoption of a healthy child, the leave may be taken intermittently if agreed to by the employer and the employee;
c.         Leave taken because of the birth or placement for adoption of a child may commence at any time within a year after the date of the birth or placement for adoption.

Clearly, the intent of both Legislatures is the same.   The Federal and New Jersey Legislatures intended to protect the employment of people giving birth, adopting a child, or taking care of a sick family member.  However, the difference between the state and federal statutes lies in the employee taking leave for his or her own health.  The federal statute provides leave for an employee due to the employee’s own health condition.  The New Jersey statute does not give that right to employees.  The New Jersey FLA likely does not include leave for personal medical problems because the Legislature recognizes that employees may receive temporary disability benefits when unable to work due to serious illness.  Within the FLA itself the New Jersey Legislature has stated that the FLA rights do not abridge the rights given under the Temporary Disability Benefits Law. N.J.S.A. 34:11B-13 

Indeed, the difference between the two statutes is seen by the title of each Act.  The federal Act is entitled "Family and Medical Leave Act," and New Jersey’s Act is entitled "Family Leave Act."  The difference between the two is not insignificant.

In contemplating the application of the FMLA in combination or connection with state laws, the Code of Federal Regulations (CFR) directs that:

(a)          Nothing in FMLA supersedes any provision of State or local law that provides greater family or medical leave rights than those provided by FMLA. The Department of Labor will not, however, enforce State family or medical leave laws, and States may not enforce the FMLA.  Employees are not required to designate whether the leave they are taking is FMLA leave or leave under State law, and an employer must comply with the appropriate (applicable) provisions of both.   An employer covered by one law and not the other has to comply only with the law under which it is covered.  Similarly, an employee eligible under only one law must receive benefits in accordance with that law.  If leave qualifies for FMLA leave and leave under State law, the leave used counts against the employee's entitlement under both laws. 

The CFR clearly indicates that the FMLA is meant to supplement state laws and not to limit leave under any state law.  New Jersey’s Administrative Code voices a similar perspective in combining the FLA with other state or federal laws.  Specifically, N.J.A.C. 13:14-1.6 states:

(a)          Where an employee requests leave for a reason covered by both the Act and another law, the leave simultaneously counts against the employee's entitlement under both laws. For example, the Federal Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq., provides leave to care for a seriously ill spouse and the Act also provides leave for that reason. Under this example, since the leave is taken for a purpose covered by both the FMLA and the Act, the leave simultaneously counts against the employee's entitlement under both laws.

(b)          Medical or disability leave granted under other laws, but not granted under the Act, shall not abridge an employee's right to leave or other protections granted under the Act. For example, the FMLA provides leave for an employee's own disability, but disability leaves are not covered by the Act. Some situations which may arise under this example include, but are not limited to:

1.         If an employee first takes FMLA leave because of his or her own disability, including a disability related to pregnancy or childbirth, the employee would be entitled to an additional 12 weeks of leave within 24 months under the Act to care for a seriously ill family member or newly born or adopted child, because the prior disability leave was taken for a purpose not covered by the Act;

2.         If an employee takes FMLA leave because of his or her own disability, including a disability related to pregnancy or childbirth, and a family member becomes seriously ill or a child is born or adopted while he or she is still on FMLA disability leave, the intervening birth, adoption or serious family illness does not convert the FMLA leave to a leave under the Act. For as long as the employee continues to be eligible for FMLA leave based on his or her own disability, the leave does not simultaneously count against the employee's entitlement under the Act.

The discrepancies between the FMLA and the FLA may result in a situation where an employee’s leave time does not count under the FLA but does count under the FMLA.   For example, suppose an employee is granted three weeks FMLA leave due to “job related stress” during a given twelve-month period. Thereafter, the employee seeks to go out for twelve weeks on a second leave due to the birth of a child within the same applicable period. However, the employer denies three weeks of the second leave because of the three weeks previously taken for the job-related stress. The first leave time was counted against her FMLA time, but should not have counted against the twelve-weeks given to her under the FLA.  When the employee began her second leave to care for her newborn, her leave was properly counted against both the FLA and FMLA.  However, while her FMLA time expired during the given period, the employee did have three weeks of time under the FLA remaining. 

Employers should recognize going forward that an employee’s leave needs to be evaluated separately under the FLA and the FMLA in order to determine what time that employee has under each Act.  In a majority of situations, the leave time under both Acts will be counted simultaneously.  However, as the preceding example demonstrates, there will be employees whose leave time will not fall under both the FMLA and the FLA at the same time.  In those situations, the calculation of time will need to be separate and the notification to the employee should distinguish the time remaining under the FLA and the FMLA.

*Kevin is an associate in the Roseland, New Jersey office and can be reached at (973) 618-4121 or kregan@mdwcg.com.