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.
When determining whether an employee meets the 1,250-hour requirement, the FMLA applies the same standard as the Fair Labor Standard Act (FLSA). That statute requires employers to pay employees for all hours actually worked, even if the employer did not specifically request it, as long as the employer “knows or has reason to believe” that the employee is working. Work performed away from the employer’s usual place of business counts towards hours worked, according to FLSA regulations.
The WHD’s guidance letter, issued on February 9, 2023, addresses the requirement that the employer has at least fifty employees within seventy-five miles. A remote worker’s home, according to the WHD, does not count as a “worksite.” That employee’s worksite is “the office to which they report or from which their assignments are made.” The employee count for that site includes all remote employees who also report to or receive assignments from there, regardless of where they live.
If you believe that your employer has violated state or federal family & medical leave law in New Jersey or New York, you may have the legal right to compensation for your losses. The employment lawyers at the Resnick Law Group are available to discuss your case, advise you about your options, and help you assert your rights. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation.