Category Archives: Employee benefits

Court qualifies disabled employee for unemployment after her employer offers unsuitable work

The Supreme Court of New Jersey, Appellate Division, yesterday reversed a decision that had denied unemployment benefits to a former employee of a grocery store located in the Princeton area. The employee’s positions with the store were variously located in the sub shop, photo department, personnel department, and on the merchandise floor.

After developing chronic obstructive pulmonary disease (COPD) and osteoporosis, the employee went out on short-term disability for over 5 months. Her doctor released her to work with a 10-pound weight restriction and a restriction on standing for no more than 3 1/2 hours at a time.

Upon her return to work, the store offered the employee a position busing tables at night, which she could not do because her husband didn’t drive at night and her listed work availability had always ended at 6pm, since the beginning of her employment.

Then the store offered her a job cleaning the employee break room. She rejected this job, stating that she could not do cleaning. A month later, she produced a doctor’s note stating that she could not do cleaning or mopping.

In the store’s employee manual was a statement that upon returning from disability leave, an employee would be returned to the same or equivalent position. New Jersey unemployment law states that employees only need to accept suitable work, taking their health into account.

The facts that: 1) The employee had never before been required to do cleaning work; 2) She was almost 64 when she returned from disability, wearing a back brace and suffering from arthritis, COPD and osteoporosis; and 3) Her doctor provided notes showing that the employee was incapable of performing the work offered, persuaded the court that the job offered to the employee was not suitable work.

The court concluded that the Board of Review was wrong in its decision denying benefits based on the employee quitting without good cause, and determined that the employee is eligible for unemployment benefits.

Commentary

Although it is not clear based on the facts presented, this case seems to raise issues in addition to the employee’s qualification for unemployment benefits. Issues appear to arise under the Family Medical Leave Act (FMLA) and or the Family Leave Act (FLA), as well as the Americans with Disabilities Act (ADA). However, cases under those laws are very fact-specific and cannot be evaluated adequately under the facts recited by the court.

Boccia v. Board of Review, et al., Docket No. A-0399-07T3 (Superior Court of New Jersey, Appellate Division 2008)

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Top 8 things you need to know about NJ’s Family Leave Act

In a previous post, I said that I’d be posting further on the requirements of the New Jersey Family Leave Act.

1) FLA applicability & notice

The NJ Family Leave Act (FLA) applies to employers who employ 50 or more employees for 20 or more weeks in the current or preceding year, including the State of New Jersey. Affected employers must post “conspicuous notice” of employees’ rights and obligations under the FLA.

2) Proper reasons for FLA leave

As noted in a previous post, employees can only take the leave for the birth or adoption of a child or to care for a family member, spouse, or civil union partner with a serious health condition – not for the employee’s own health condition. Leave for an employee’s own serious health condition would be covered under the separate and distinct rules of the Federal Family and Medical Leave Act (FMLA).

3) Duration of leave

Eligible employees may take 12 weeks of paid or unpaid FLA leave within any 24-month period. The employee must provide the employer with reasonable advance notice of intention to take FLA leave. It is up to the employer to choose exactly how to count the 24-month period.

4) Certification

An employer can require “certification” of the health condition or of the birth or adoption of a child. The certification must come from a health care provider.

5) A returning employee’s post-leave rights

Upon their return to work, employees who take FLA leave are entitled to either: 1) Have their old job back upon their return to work; or 2) Have another job that is equivalent to their old job in seniority, benefits, pay, and other terms and conditions of employment. An employee would not be entitled to get their job back if they would’ve been let go anyway during a reduction in force or layoff.

6) Employer-sponsored health insurance

Health insurance that the employee had before the FLA leave is to remain in effect during the leave.

7) Retaliation

There is an anti-retaliation provision in the FLA, meaning that it is illegal for an employer to fire someone or otherwise discriminate against them for opposing a practice that would be illegal under the FLA.

8) Relationship to temporary disability

FLA leave is in addition to, not instead of, temporary disability benefits received under the Temporary Disability Benefits Law.

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How same-sex partners can get leave time for a partner’s serious health condition

In New Jersey, must employers provide family leave to partners in civil unions? Yes! New Jersey’s Family Leave Act gives civil union partners the same rights as married spouses with regard to taking leave time from employment for a partner’s serious health condition.

But this is not the case in most states. Most states have not legally recognized the need for same-sex partners to take family leave for each others’ serious health conditions. The Federal Family Medical Leave Act does not provide for leave time for same-sex partners due to each others’ serious health conditions. So unless the employer chooses to provide that benefit, or it’s in the union’s collective bargaining agreement with the employer, most same-sex partners in the U.S. will not have leave time available to take care of a sick partner when they need it.

Both the New Jersey and the Federal family leave laws have many requirements to qualify for leave time under their provisions. I’ll cover these requirements in future posts, but I’ll go ahead and highlight the major differences between New Jersey’s Family Leave Act and the Federal Family Medical Leave Act:

1)  The New Jersey law does not allow you to take leave for your own medical condition.  To take leave for your own “serious health condition,” (as defined under Federal law) you have to qualify under the Family Medical Leave Act (FMLA).  Not all employers and employees are covered by the FMLA.

Under New Jersey’s Family Leave Act allows certain employees who work for certain types of employers to take leave to care for: A newly born or adopted child; or a parent, child under 18, spouse, or civil union partner with a serious health condition.

2)  New Jersey law provides for 12 weeks of leave in a 24-month period.  Federal law provides for 12 weeks of leave in a 12-month period.  There are times when the New Jersey law would apply and the Federal law would not, allowing for leave time where it would not otherwise be given.

In situations where both laws would apply simultaneously, Federal law would trump state law – the employee is not eligible for both state and Federal leave. In those situations, only the Federal leave rules would apply.

3)  New Jersey’s Family Leave Act applies to employers who have 50 or more employees nationwide.  However, the law would only provide leave for those employees who are located in New Jersey.  By contrast, the Federal FMLA applies to employers who have 50 or more employees within 75 miles of each other.

4)  As noted above, the Federal FMLA does not apply to civil union partners and the New Jersey Family Leave Act does.

Keep checking this blog for more information on New Jersey’s Family Leave Act requirements.  Or make it easy on yourself and add my blog’s feed to your RSS reader or sign up for email alerts.

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Mental Health Parity

The recent bailout bill had an interesting addition – a mental health parity act. When this new mental health parity act takes effect, your employer-sponsored health insurance plan will no longer be allowed to differentiate benefits levels between regular medical benefits and mental health benefits provided under the plan. Right now, insurers are allowed to set higher co-pays or stricter limits on benefits, such as a fewer number of visits to a speech therapist for autism, for example.

The parity act is broad in that it includes coverage for addiction services as well. However, it does not apply to employers with fewer than 50 employees.

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