FMLA Basics

Taking medical leave can be stressful whether you need time off from work to care for a new child in your family, a sick family member, or even your own serious illness. Thankfully, many New Jersey employees can take time off that is generally known as legally protected leave under the federal Family Medical Leave Act of 1993, 29 U.S.C. 2601 (FMLA).

There are a few requirements that must be met before employees are entitled to take FMLA leave. For example, you must work for an employer who employs 50 or more workers within a 75 mile radius of your work location to even be eligible for FMLA leave. 29 U.S.C. 2611(4)(A). Also, you must have both worked for your employer for at least 12 months and worked at least 1,250 hours during the 12 months preceding your requested leave. 29 USC 2611. So, you are legally entitled to take legally protected FMLA leave if you (1) work for an employer with at least 50 employees within 75 miles of your work location, (2) worked for your employer for at least 12 months, and (3) worked at least 1,250 hours within that 12 month period of time.

For employees who do not have a single worksite to which they report, like truck drivers, construction workers, and transportation workers, their worksite, for FMLA purposes, is considered the location or terminal to which they are generally assigned to, to which they report for work, and/or to which they arrive and depart from every day. Although salespersons may start and end their day at home in between traveling to various potential clients’ offices, their worksite is not their home. Similarly, the work locations of employees who work remotely is also not their home. Instead, the worksite of both the remote worker and salesperson is the office to which they remote and from which they receive their work assignments. 29 U.S.C. 825.111.

You are entitled to take FMLA for various different scenarios. Such as

• for the birth of a child and to care for that child,
• for the adoption of a child,
• for the placement of a foster child in your care,
• to care for a spouse, child, or parent with a serious health condition,
• to care for your own serious health condition,
• to take care of certain necessities if your spouse, child, or parent is a member of the armed services or has been notified that he or she is being called into active duty, and/or
• to care for a covered servicemember with a serious illness or injury if that individual is your spouse, child, parent or if you are that person’s next of kin.

Certain mental health, physical, and substance addiction, including drug and alcohol addiction, may qualify as serious health conditions under the FMLA. For substance and/or alcohol addiction to qualify as a serious health condition, the requesting employee must require inpatient care or ongoing treatment from a healthcare provider. Generally, FMLA-qualifying serious health conditions include conditions that

• require an overnight stay in a medical facility or hospital, or
• are incapacitating for more three or more consecutive days and require ongoing medical treatment, which can mean as little as a single appointment with some follow-up care such as requiring prescription medication, or
• chronic conditions that cause an occasional period of incapacitation and require treatment by a healthcare provider at least twice per year, or
• pregnancy, which includes prenatal medical appointments, incapacitation due to morning sickness, and/or medically-ordered bed rest.

Section 2612 of the FMLA makes clear that employees eligible to take FMLA are entitled to 12 weeks of leave during any 12 month period of time. How that 12 month period of time is calculated, however, depends on your employer’s workplace policies.

No, you can take as much or as little leave as you need. The FMLA also allows employees to take “intermittent leave” when medically necessary. That means that employees can take leave in blocks of time or on a reduced work schedule. Many employees take intermittent leave to, for example, care for chronic medical conditions that flare up periodically, deal with medical conditions like migraines, and/or obtain treatment for medical conditions such as obtaining chemo and/or radiation to treat cancer. There are many other circumstances and examples of when intermittent leave would be appropriate.

Your employer’s FMLA policy explains how the 12-month period is calculated but generally it must be calculated in any of the following ways:

1. a calendar year,
2. any fixed 12-month period of time that coincides with an employer’s fiscal year or your work anniversary date,
3. the 12-month period starting on the day that your first FMLA leave began, and/or
4. what is known as a rolling 12-month period measured backward from the date you used any FMLA leave.

While the FMLA only provides you with up to 12 weeks of job-protected leave, you may be able to take additional time off as a reasonable accommodation of your own health condition under the Americans With Disabilities Act and New Jersey Law Against Discrimination. Also, if you took 12 weeks of FMLA for your own serious health condition, you may be entitled to an additional 12 weeks of job-protected leave under New Jersey’s Family Leave Act (FLA) to care for your spouse, parent, or child with a serious health condition. Pregnant workers are also entitled to more than 12 weeks of job-protected leave given the interaction of the FLA and FMLA, which you can read more about on our Pregnancy Leave page.

Yes, the FMLA grants various rights to employees. For example, at the end of your leave, you must be returned to the position you held prior to taking leave or a substantially similar position, which means a position with equivalent pay, benefits, and responsibility. The only exception is where you would have been fired or laid off during leave regardless of whether you had taken leave. 29 C.F.R. 825.216(a). Also, once you request leave, you are entitled to know within five business days of whether your leave qualifies as FMLA leave. You are also entitled to information about what your obligations are while on leave. Some of that information includes whether you will be required to provide medical certifications concerning your need for leave, will you have to substitute your paid leave for some of your FMLA-leave, and will you be required to undergo a fitness for duty examination before being returned to work. Also, you are entitled to information about when your leave ends so that you can timely return to work.

You also have the right to be free from

• interference with your FMLA Rights, which you can read more about on our FMLA Interference page,
• discrimination for requesting or taking FMLA leave, which you can read more about on our FMLA Discrimination page, and
• retaliation for requesting or taking FMLA leave, which you can read more about on our FMLA Retaliation page.

The New Jersey FMLA attorneys at Lenzo & Reis understand that FMLA issues can be complicated and difficult for non-lawyers to understand. We have successfully helped countless New Jersey employees navigate the difficulties of FMLA issues and overcome employer-created obstacles that stand in the way of workers getting the FMLA leave to which they are entitled and desperately need. We can help you, too. If you need FMLA leave help, you should contact New Jersey’s FMLA lawyers at Lenzo & Reis at (973) 845-9922 or e-mail by clicking here.