Maintaining Compliance under the Family Leave Act or FMLA
At first glance, New Jersey’s Family Leave Act may look simple and easy for employers to maintain compliance. Business owners may incorrectly assume that the New Jersey laws are similar to newer family leave laws such as New York’s or California’s and that the protected leave and paid benefit are part of the same legislation. However, that is incorrect.
Further, when combined with the state’s Family Leave Insurance, it appears that New Jersey has a Paid Family Leave Act. However, in reality, New Jersey has four separate laws or benefit programs that function individually or combine together in order to provide employees with different benefits. In addition, the Federal Family Medical Leave Act (FMLA) also provides an unpaid protected leave for certain employees.
The purpose of this article is to cover the individual laws and benefits provided in order to provide a comprehensive compliance overview for business owners and human resource professionals.
New Jersey Family Leave Act and FMLA
In many aspects the New Jersey Family Leave Act (NJFLA) and the Federal Family Medical Leave Act are very similar. Under the right circumstances, both leaves can be used concurrently. However, there are circumstances in which leave does not run concurrently and employees would be entitled to separate leaves.
The NJFLA provides employees with up to 12 weeks of protected leave in a 24 month period while FMLA provides up to 12 weeks of leave in a 12 month period.
There are many reasons that employees can take leave and that both the New Jersey Family Leave and the Federal Family Medical Leave would occur simultaneously.
First, an employee can take time off to bond after the birth of a child or if the employee has a child placed with them through adoption or foster care. When leave is taken for bonding purposes, the employee has the first 12 months after the child enters the home to take time to bond.
Secondly, employees can take leave to care for a family member’s serious illness, injury or health condition. For both NJFLA and FMLA, the requirements for an illness or injury to be considered serious are much the same.
A serious illness or injury is anything that would put the family member under continuous care of a health care provider or would require in patient care at a hospital, through hospice or a residential care facility.
One key difference is that the New Jersey Family Leave Act does not provide protected time for the employee’s own illness or medical condition, while FMLA does.
If an employee use NJFLA for a reason not provided for in FMLA and then falls ill, that employee could then take time off for their own medical condition as provided for in FMLA.
Conversely, if an employee first takes time off for their own medical condition under FMLA, then NJFLA would not concurrently run and the employee could still take additional time off for any of the reasons allowed under NJFLA.
|Family Medical Leave Act||New Jersey Family Leave Act|
It is vital that employers document the purposes for the employees leave and maintain records. Employers must notify employees of the type of leave being applied. The employee must be aware of whether one or both leave types will run.
Leave cannot be retroactively applied. Therefore, without proper documentation, employees could have access to additional time. In addition employee benefits must be maintained under the same conditions as if the employee was working.
Lastly, as with most employment laws, the burden of proof rests on the employer to show compliance with the leave laws.
For these reasons, it becomes even more crucial for employers to have a record and timekeeping system, such as SwipeClock, in place to help manage and track leave time taken.
Family Member Definitions allowed by NJFLA and FMLA
Both acts provide coverage for the following family members: child, parent, and spouses. Children must be under the age of 19 or incapable of self-care. Both acts recognize common law and marriage partners. In addition, both acts recognize foster, adopted, biological, step, legal wards and in loco parentis parental relationships.
However, New Jersey’s law also allows leave for both domestic partners and for parent in laws while FMLA does not.
|New Jersey Family Leave Act||Family Medical Leave Act|
That means that an employee takes leave to care for a parent in law or a domestic partner under New Jersey’s Family Leave Act, that protected time would not count toward FMLA time. Therefore, an employee who takes time that is only valid under NJFLA would still be eligible to take time off for FMLA.
Qualifying for Leave under FMLA and NJFLA
Although the qualifications for both the federal and the state’s leave is similar, there are some difference that would make some employees qualify for New Jersey’s law, but not the Federal FMLA.
The NJFLA requires that the employee work at least 1,000 hours in the previous year and that the employer have at least 50 employees. The employee must have also worked at least 12 months for the employer, although it doesn’t have to be a consecutive 12 months.
Meanwhile, FMLA requires 1,250 hours worked in the previous 12 months and also requires a total of 12 months of work for the employer. In addition, the employer must have 50 employees within a 75 mile radius. The NJFLA doesn’t have a 75 mile radius requirement and the 50 employee requirement is for anywhere in the world.
Under these slight differences, employees may qualify for NJFLA, but not qualify for FMLA leave.
Getting Paid Under Family Leave or Family and Medical Leave
Although both the FMLA and NJFLA provide for protected unpaid leave, two other programs in New Jersey often provide paid benefits for employees taking these leaves. However, it is important to understand that the New Jersey Family Leave Insurance and Temporary Disability Insurance programs are separate from the Family Leave Act or FMLA.
That means that some employees who may qualify for payments under the benefit programs may not qualify for the protected leave.
Similarly, there may be employees who qualify for protected leave, but don’t qualify for benefits payments. Read the article on New Jersey Family Leave Insurance, Temporary Disability Insurance and FMLA for HR to learn more about Temporary Disability Insurance and Family Leave Insurance in New Jersey.
Let SwipeClock Help
Businesses in New Jersey must be aware of the implications and practical application of the New Jersey Family Leave Act, Security and Financial Empowerment Act and the applications with FMLA. In addition 11 other states have FMLA laws that coincide or conflict with the U.S. FMLA law including Colorado, Vermont, Minnesota and other.
SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.
Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according to the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
Written by Annemaria Duran. Last updated June 16, 2017