Category Archives: FMLA

Employee eligibility: What you need to know about the new FMLA regulations

Yesterday, the Department of Labor released new final FMLA regulations that will take effect on January 16, 2009. The Labor Department developed these regulations because of the National Defense Authorization Act for Fiscal Year 2008 (NDAA), which President Bush signed last January, and because of parts of the current regulations being invalidated by various court decisions. The regulations detail two new military family leave entitlements. Here is a summary of the important changes that you should be aware of:

Employee Eligibility for FMLA – the 12-month rule

One of the requirements for eligibility is that an employee must work for that employer for at least 12 months. The new rule says that those 12 months need not be consecutive, but that employment before a 7-year break in service need not be counted. 29 CFR 825.110(b)(1). The rule provides for two exceptions: 1) Time served fulfilling National Guard or Reserve duty counts toward the 12-month employment requirement; and 2) Where there is a written agreement concerning the employer’s intention to rehire the employee after the break in service. 29 CFR 825.110(b)(2). If an employer chooses to count someone’s employment prior to a 7-year gap, it must do so for all employees with a similar break in service.  29 CFR 825.110(b)(4).

Working 1,250 hours in 12 months

Another eligibility requirement is that an employee must have worked at least 1,250 hours in the 12 months immediately preceding the beginning of the FMLA leave. A new regulation provides that an employee who is re-employed under USERRA after military service must be credited with the hours they would have worked but for the military service. 29 CFR 825.110(c)(2).

The Department of Labor clarified the eligibility rule to reflect that an employee who is out on non-FMLA leave may become eligible for FMLA leave during that time, thus turning the last part of the non-FMLA leave into FMLA leave. 29 CFR 825.110(d).

FMLA leave for members of the military and their relatives

A couple of paragraphs were added regarding required leave for employees or relatives who are members of the military.  Employers must grant FMLA leave to employees where there is a “qualifying exigency” arising from the fact that their child, parent, or spouse is a “covered military member on active duty” or has been notified of an impending call to active duty.  FMLA leave must also be granted to an employee to care for an injured servicememer who is a parent, spouse, child, or next of kin. 29 CFO 825.112(5), (6).

What’s a qualifying exigency?

The “qualifying exigency” referred to in the prior paragraph can be: 1) A short-notice deployment; 2) A military event or related activity; 3) Alternative childcare or school arrangements that need to be made because of military active duty status; 4) Financial or legal arrangements because of military active duty; 5) Counseling for the covered military member; 6) Short-term rest and recuperation of the military member; 7) Attending post-deployment activities sponsored by the military; or 8) Other activities arising out of military duty. 29 CFR 825.126.


These are the main changes to the eligibility regulations of the FMLA.  As you can see, most of the changes have to do with members of the military and their relatives.  Many employers might argue that this puts a lot of the burden of leave time from employment on the employer, and they’d be right.  However, the heaviest burdens of military service are still being carried by individual members of the military who are deployed overseas.  So a spreading of the burdens, in a sense, is not such a bad thing.


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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.


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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Filed under Employee benefits, FMLA, NJ Family Leave Act, unemployment

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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Filed under Employee benefits, FMLA, NJ Family Leave Act

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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Filed under Employee benefits, FMLA, NJ Family Leave Act

Employee fired for performance issues not eligible for FMLA

An employee who was fired for performance-related issues does not have a legitimate claim under the FMLA just because his request for FMLA leave happened to coincide with the termination of his employment, according to the U.S. District Court for the Eastern District of Pennsylvania.

The employee worked at a bank and he was fired because he was responsible for having controls in place that would have caught an embezzlement that had occurred at the bank. Before he was fired, the employee sought FMLA leave for knee surgery. However, the court found that the employee was not eligible for FMLA leave once he was fired because he was no longer employed by the bank.

According to the court, the employee was fired for a reason unrelated to his request for FMLA leave. An employee who has requested FMLA leave is not entitled to greater rights or benefits than he would be if he had not requested leave. In other words, the employer was entitled to fire the employee for performance related issues even though he had requested FMLA leave for knee surgery.

Edwards v. Harleysville National Bank, Civ. No. 07-3987, (ED Penn. 2008).

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