Articles Posted in FMLA Discrimination

New Jersey employment laws at both the state and federal levels protect the rights of employees to take time off from work for certain reasons. These include medical issues affecting themselves or family members. Employers must allow workers to return to their jobs, or a substantially similar job with the same pay and benefits, at the end of their authorized leave. New Jersey provides paid leave for personal or family medical issues. The federal Family and Medical Leave Act (FMLA) provides up to twelve weeks of unpaid leave for similar reasons. Employees must work for a covered employer and meet eligibility requirements in order to take protected FMLA leave. The U.S. Department of Labor (DOL) recently issued an updated poster that covered employers must display in the workplace. The poster outlines employees’ rights and employers’ obligations under the statute.

Family leave is available to New Jersey workers through state law as a form of insurance. Covered employers fund the system through payroll taxes. To be eligible, a worker must have worked the minimum number of hours necessary to pay into the program. Eligible workers in New Jersey may be able to take up to:
– 26 weeks of medical leave for non-work-related injuries or illnesses;
– 12 weeks of family leave to care for a family member;
– 12 weeks of family leave for a new parent to bond with a newborn infant or newly adopted or fostered child within one year of the child’s arrival; or
– 12 weeks of family leave for a new mother to bond with her infant, as well as 26 weeks of temporary disability leave before and after the birth.
The amount of pay workers may receive while on leave is equal to 85% of their average weekly pay or $1,025 per week, whichever amount is smaller. Unpaid leave with job protection is also available under state law.

The benefits offered by the FMLA are simpler than those provided by New Jersey law. Eligible employees may take up to twelve weeks of unpaid leave for:
– A new child, whether by birth, adoption, or foster placement;
– A serious illness or injury that prevents an individual from working;
– A close family member’s serious illness or injury; or
– Issues related to the military deployment of a close family member.
The eligibility rules for FMLA leave, on the other hand, are quite complicated. An employee must work for a covered employer, and they must meet minimum requirements for the number of hours worked.
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New Jersey employment laws provide eligible workers with protected leave to deal with medical issues or care for family members. The federal Family and Medical Leave Act (FMLA) provides up to twelve weeks of unpaid leave for certain reasons. In order to qualify for leave under this statute, an employee must work for a covered employer and meet minimum work-hour requirements. An increasing number of workers in New Jersey and around the country are working remotely, which has raised questions about how the FMLA applies. The Wage and Hour Division (WHD) of the U.S. Department of Labor issued guidance in February 2023 addressing this and several other questions. Its position is that the FMLA’s protections apply to remote workers in much the same way that they would be available to on-site employees. It offers some clarifications on how eligibility criteria relating to an employee’s “worksite” apply to remote workers.

Eligibility for FMLA leave is complicated. The statute establishes criteria for the employer, the employee, and the purpose of the requested leave. It applies to employers with at least fifty employees. An employee must meet the following three criteria:
1. They have worked for the employer for at least twelve months. For this criterion, the twelve months do not need to be consecutive.
2. During the twelve-month period immediately before the employee requests leave, they have worked a minimum of 1,250 hours.
3. Their employer employs at least fifty people within seventy-five miles of their worksite.

Reasons for leave under the FMLA may include the following:
– A serious health condition that prevents an employee from performing their job;
– The birth, adoption, or foster placement of a child;
– A serious health condition of a spouse, child, or parent; or
– A “qualifying exigency” related to the active-duty military service of a spouse, child, or parent.
Employers violate the FMLA when they interfere with an eligible employee’s effort to use accrued leave time or discriminate against an employee because they requested or used leave. They must allow employees to return to the same position or a substantially similar position when their leave ends, with the same pay and benefits.
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New Jersey employment laws protect employees from discrimination on the basis of numerous factors, including pregnancy and related medical conditions. Despite some progress in recent decades, discrimination against workers who become pregnant remains a problem in New Jersey and around the country. Pregnancy discrimination violates the New Jersey Law Against Discrimination (NJLAD) and its federal counterpart, Title VII of the Civil Rights Act of 1964. Both federal and state laws also protect workers’ right to family and medical leave and prohibit employers from discriminating or retaliating against employees who use leave time that they have accrued. A lawsuit filed in state court in August alleges that an employer discriminated against the plaintiff on the basis of pregnancy and retaliated against her for using family leave. The defendant removed the case to federal court in early October.

Both the NJLAD and Title VII prohibit employers from taking adverse actions against employees on the basis of pregnancy. The NJLAD goes further by requiring employers to provide pregnant employees with reasonable accommodations for conditions related to their pregnancies. This may include additional breaks for water or to use the restroom, as well as leave from work as long as this does not pose an “undue burden” for the employer.

The Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA) both require covered employers to allow qualifying employees to take leave for certain reasons without any risk to their jobs. Both laws provide up to twelve weeks of leave during a twelve-month period. Reasons for leave may include caring for a newborn child. Employers may not interfere with an employee’s use of accrued leave time, nor may they retaliate against an employee for using leave.
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The COVID-19 pandemic has had a devastating effect on New Jersey’s employment landscape for more than a year. Congress passed several bills in 2020 intended to help people impacted by the pandemic, both medically and economically. The Families First Coronavirus Response Act (FFCRA), which became law in March 2020, provided paid sick leave and paid and unpaid family leave for people who were either directly affected by the virus, or who were caring for one or more affected family members. These provisions expired at the end of 2020. The American Rescue Plan Act (ARPA) became law in March 2021, and includes extensions and expansions of both family leave and paid sick leave.

The FFCRA created a new federal system for paid sick leave, and expanded the provisions for leave under the Family and Medical Leave Act (FMLA). The law required most employers with fewer than five hundred employees to provide emergency paid sick leave (EPSL) to workers who could not come to work, in person or virtually, for reasons related to the COVID-19 pandemic, including
– Quarantine on the orders of a government official, or the recommendation of a doctor;
– Symptoms of COVID-19;
– Caring for a family or household members who is subject to a quarantine order or recommendation; or
– Caring for a child whose school was closed due to the pandemic.

EPSL covered an employee’s regular rate of pay, up to a maximum of either $511 per day or $5,110 total. Employees could take up to eighty hours of paid leave. Employers received a credit against the Social Security portion of their payroll taxes for paid leave provided to their employees.
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On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) became law. This bill is not as comprehensive as other bills that Congress has passed in response to the global COVID-19 pandemic, but it has some of the most important provisions affecting employment law. New Jersey employment law provides paid sick leave for workers and is one of few states to do so. The FFCRA establishes a temporary nationwide system of paid sick leave. It also temporarily expands the unpaid leave that is available under the federal Family and Medical Leave Act (FMLA). These provisions have several important limitations, including the total exclusion of employers with five hundred or more employees. A new temporary rule from the Department of Labor’s Wage and Hour Division (WHD) limits some workers’ ability to enforce their rights under the system of expanded FMLA leave.

FMLA Enforcement at Normal Times

The FMLA applies to employers with fifty or more employees, and employees who have worked at least 1,250 hours during the previous twelve months. In any twelve-month period, an eligible worker may take up to twelve weeks of unpaid leave for certain purposes, including a “serious health condition” and the need to care for a family member with such a condition.

Employers may not interfere with an eligible employee’s use of authorized leave, nor may they retaliate against an employee for taking leave. The employee’s job is protected during their leave. Employees may file a civil lawsuit against an employer who violates these provisions, and may recover damages including lost wages and benefits.

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American society often takes an odd view of sick leave. A common way for someone to demonstrate their dedication to their job is to say that they have “never taken a sick day.” The implication behind this claim is not necessarily that they never got sick, but rather that they continued showing up to work even if they were sick. Everyone gets sick at some point, though, whether it is a minor cold, a major flu, or something even worse. Some people might never take sick leave because they feel like they should not, while other people might not have the option of missing work. From an employee’s point of view, New Jersey employment laws are more generous than those of many states in this regard.

Showing up to work regardless of illness might seem like an admirable display of determination, but it could put one’s co-workers at risk of getting sick. This is especially true in early 2020, when COVID-19, also commonly known as the coronavirus, has led public health officials to advise people displaying certain symptoms to stay home or seek immediate medical attention. Unfortunately, not everyone can do this.

Many workers in the U.S. have little to no available sick leave, paid or unpaid. Even if they have the means to see a doctor, they might believe that they have no choice but to go to work. Workers in New Jersey need to know their rights under state and federal sick and medical leave laws, so that they can better understand their options if they need to isolate themselves.

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The Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to twelve weeks of unpaid leave. It is the only federal statute that provides medical leave nationwide, and it only provides unpaid leave. New Jersey is one of five U.S. states, plus the District of Columbia, to provide paid leave for new parents and for certain other purposes. The U.S. Department of Labor (DOL) revised its guidance on the accrual of FMLA leave by employees in an opinion letter released in March 2019. This guidance bars employers from delaying the designation of accrued leave as FMLA leave. It might also affect how and when employees can take leave under the FMLA or another program. If you need to take paid leave and wonder if doing so is permissible under state law, you should reach out to a New Jersey employment law attorney at your earliest convenience.

Employers with at least fifty employees must provide FMLA leave. 29 U.S.C. § 2611(4)(A). In order to be eligible, employees must have worked for the employer for at least one year, and they must have actually worked at least 1,250 hours during that time. Id. at § 2611(2). Unpaid leave is available for up to twelve weeks per twelve-month period, for reasons like the birth or adoption of a child, serious illness or injury, or caring for an ill or injured family member. Id. at § 2612(a)(1).

If an employer provides paid leave to its own employees, but the total amount of leave available under the program is less than twelve weeks, the FMLA only requires that employer to provide enough unpaid leave to bring the total amount of leave to twelve weeks. Id. at § 2612(d). For example, if an employer provides six weeks of paid family leave, the FMLA would only require it to provide an additional six weeks of unpaid leave.

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New Jersey family and medical leave laws provide eligible workers with guaranteed time off from work for the birth of a child. State and federal laws also protect workers from discrimination by their employers because of pregnancy or childbirth. A company that operates a hospital in Middlesex County, New Jersey, recently settled a lawsuit brought by a former employee alleging discrimination on the basis of both pregnancy and medical leave. The settlement includes $500,000 in damages, plus attorney’s fees.

At the federal level, the Family and Medical Leave Act (FMLA) provides eligible employees of covered employers up to twelve weeks of unpaid leave per year for certain purposes, such as the birth of a child or a serious illness. 29 U.S.C. § 2612(a)(1). The eligibility criteria are based on both the total number of employees and the number of hours worked by each individual employee. See id. at §§ 2611(2)(A), (4)(A). Employers may not interfere with employees seeking to exercise their rights under these laws, nor may they discriminate against anyone for taking legally authorized leave. Id. at § 2615(a). The New Jersey Family Leave Act (NJFLA) provides similar rights and protections, with some differences. See N.J. Rev. Stat. §§ 34:11B-3(e), (f); 34:11B-4; 34:11B-9.

Both federal and New Jersey antidiscrimination statutes prohibit discrimination on the basis of pregnancy or childbirth. Title VII of the Civil Rights Act of 1964 defines pregnancy and childbirth discrimination as a form of sex discrimination. 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating on the basis of “familial status,” which includes “being the natural parent of a child” and “any person who is pregnant.” N.J. Rev. Stat. §§ 10:5-5(ll), 10:5-12(a).

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New Jersey’s antidiscrimination statute protects workers from discrimination on the basis of multiple categories. Federal law supplements these rights, and also protects the right of qualifying workers to unpaid leave for medical purposes. Employers may not take adverse actions against employees or job applicants on the basis of a protected category, nor may they interfere with an employee’s exercise of their right to medical leave. A lawsuit filed in July 2019 in a New Jersey federal court alleges that the plaintiff’s employer committed each of these forms of discrimination. It further alleges that the employer failed to provide reasonable accommodations for the plaintiff’s religious practices and her perceived disability.

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination on the basis of disability, religion, and other factors. This includes failure to accommodate an employee’s “sincerely held religious practice or religious observance,” provided that doing so does not cause “undue hardship” to the employer. N.J. Rev. Stat. § 10:5-12(q)(1). Title VII of the federal Civil Rights Act of 1964 prohibits discrimination on the basis of religion, including any “religious observance or practice” that an employer can accommodate without undue hardship. 42 U.S.C. §§ 2000e(j), 2000e-2(a).

The federal Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. It also requires reasonable accommodations, subject to a similar exception for undue hardship. 42 U.S.C. § 12112. In addition to a wide range of “physical or mental impairment[s],” the ADA defines “disability” as “being regarded as having such an impairment.” Id. at §§ 12102(1)(C), (3). The NJLAD’s definition of “disability” does not expressly include the perception of having a disability. N.J. Rev. Stat. § 10:5-5(q).

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Paid sick leave is a controversial subject throughout the country. Only a handful of states require it in some form. Federal law only mandates unpaid leave. Employers tend to oppose paid sick leave laws, since these laws require them to pay their employees for time they are not at work. Advocates of paid sick leave laws point out the reality that people get sick, that they need to be able to take time to rest and recover, and that many people will come to work sick if they know that the alternative is losing needed income. Sick people who come to work instead of staying home are rarely as effective at their jobs during that time, and they risk making even more people sick. New Jersey joined the small number of states that mandate paid sick leave earlier this year, when the Legislature passed the New Jersey Paid Sick Leave Act (NJPSLA). When it takes effect on October 29, 2018, this law will apply to all employers in the state, regardless of number of employees.According to the National Conference of State Legislatures (NCSL), only 10 states, including New Jersey, and the District of Columbia had mandatory paid sick leave as of May 2018. Federal law contains no provisions for mandatory paid leave for any purpose, including sick leave and parental leave. Internationally, the United States is an outlier among developed nations. A 2009 study by the Center for Economic and Policy Research (CEPR) compared paid sick leave policies in 22 countries. With the exceptions of Japan, Australia, and New Zealand, all of the countries are located in Europe or North America. The CEPR found that the U.S. is one of only three countries, along with Canada and Japan, with no paid sick leave whatsoever at the national level. At the opposite end of the spectrum, Luxembourg and Norway provide paid sick leave for up to 50 days for serious medical conditions like cancer.

The NJPSLA differs from most state paid sick leave laws in the breadth of its coverage. It defines an “employer” as “any…entity that employs employees in the State,” with no exception for small businesses. By contrast, the federal Family and Medical Leave Act (FMLA) only applies to employers with 50 or more employees, and to employees who have worked a minimum of 1,250 hours for their employer in the last 12 months. The FMLA also differs in the sense that it only requires unpaid leave.

Workers claiming sick leave under the NJPSLA are entitled to their regular rate of pay. For every 30 hours worked, workers accrue one hour of paid sick leave. Workers can carry a maximum of 40 unused hours of earned sick leave to subsequent years. The NJPSLA identifies five acceptable reasons for use of accrued sick leave:

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