New Jersey Employee Rights and Employer Obligations under the Family Medical Leave Act

The Family and Medical Leave Act (“FMLA” 29 U.S.C. §§ 2601-2654) grants eligible employees up to 12 weeks of unpaid leave for specific family and medical reasons while maintaining job protection.  An employee is “eligible” if they have worked for their employer for at least 12 months. Employers have a legitimate interest in maintaining smooth operations of their business, and having someone sidelined for 12 weeks may present a challenge. However, employer overzealousness in protecting those interest could expose them to potential claims of FMLA interference and retaliation.

Under the FMLA, eligible employees are entitled to take leave for:

1. Birth and care of a newborn child;
2. Adoption or foster care placement of a child;
3. Care for an immediate family member with a serious health condition;
4. The employee’s own serious health condition;
5. Any qualifying exigency arising from a family member’s military service.

In New Jersey, employers must adhere to both the federal FMLA and the New Jersey Family Leave Act (NJFLA), which provides additional protections.

FMLA interference occurs when an employer unlawfully interferes with, restrains, or denies the exercise of or the attempt to exercise any right provided by the FMLA. This could come in the form of refusing to authorize FMLA leave, discouraging an employee from using FMLA leave, or manipulating work hours to avoid FMLA eligibility, among other unlawful practices. In Callison v. City of Philadelphia, 430 F.3d 117 (3d Cir. 2005) an employer’s strict policy on call-ins during FMLA leave was deemed not to interfere with FMLA rights as long as it was consistently applied to all employees. In Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135 (3d Cir. 2004), it was held that failing to notify an employee of their FMLA rights could constitute interference. In this instance, the employer’s failure to provide proper FMLA information resulted in the employee missing critical leave entitlements.

FMLA retaliation occurs when an employer discriminates against an employee for exercising their FMLA rights. This can come in the form of demotion, salary reduction, or termination after an employee takes or requests FMLA leave. Once a claim of retaliation is brought, the burden is on the employer to prove that it had a legitimate basis to take action against an employee. Under Lichtenstein v. University of Pittsburgh Medical Center, 691 F.3d 294 (3d Cir. 2012), mere “temporal proximity” (closeness in time) between the FMLA leave and adverse employment action could support an inference of retaliatory intent.

To mitigate risks associated with FMLA interference and retaliation claims, New Jersey employers should develop and maintain clear, written FMLA policies. Ensure these policies are accessible and communicated to all employees. Regular training for HR personnel and managers on FMLA rights and employer obligations is also beneficial. Emphasize the importance of not discouraging FMLA use or retaliating against employees who exercise their FMLA rights. Maintain thorough documentation of all FMLA leave requests, approvals, and related communications, and ensure all policies are equally applied. Documentation should detail the legitimate business reasons for any adverse employment actions taken.

For New Jersey employers, understanding and adhering to FMLA provisions is crucial to prevent interference and retaliation claims. By implementing robust policies, ensuring consistent application, and maintaining proper documentation, employers can effectively navigate the complexities of FMLA compliance while supporting their employees’ rights.

Please contact me if you have any questions or need assistance complying with the FMLA.

About the Author

Robert Devaney, an associate with the firm, concentrates his practice in labor & employment law, education & school law, and family law. Robert focuses a large part of his practice on working with Military Veterans with their labor, employment, and family law matters. Having served in the United States Marine Corps for nine years before receiving his Honorable Discharge, Robert has a unique understanding of the issues that Veterans face in these areas. For example, he serves as legal counsel to the New Jersey Veterans Network.