In order to qualify for FMLA leave, the employee must work for an employer with 50 or more employees working within a 75-mile radius. The worker must have worked for the employer for at least one year and have worked a minimum of 1,250 hours during that year.

The leave can only be taken for the following reasons:

• Birth, foster care or adoption of a new child
• Suffering from a serious health condition
• To care for a close family member who is suffering from a serious health condition
• Urgent matters caused by a family member’s going on active duty
• To care for a family member’s service-related illness or injury

Leave to care for an injured military service member may include up to 26 weeks of leave, but it may only be taken one time.

Employers who are covered by the FMLA owe certain duties to workers who take approved leave. The workers must be reinstated to their former jobs when they return from leave. The employers are required to continue any health insurance benefits while the employee is on leave and allow the employees to use paid time off during their unpaid FMLA leave in some cases.

Job reinstatement

People who take unpaid FMLA leave must be reinstated when they return from leave. They must either be given their same positions or equivalent ones that are equal in pay, working conditions and benefits. There are some caveats, however.

If a person’s job is legitimately eliminated while he or she is on leave, he or she will not have a reinstatement right. The elimination of the position must not be related to the person’s taking leave. Employers are also allowed to refuse the reinstatement of certain key employees. These include people who are among the top 10 percent of wage earners at the company within a 75-mile radius and when reinstatement of them would cause severe economic injury to the company. In order to refuse reinstatement, the employer must first warn the high-paid employee that he or she may not be allowed to return.

Continued health insurance

Employees who work for employers that provide group health plans are entitled to continue with their coverage while they are on FMLA leave. If they voluntarily decide not to come back to work at the end of their leave, the FMLA rules allow the employers to obtain reimbursement for the health care premiums that were paid on the employees’ behalf.

Using paid time off

People may be able to use the paid leave that they have built up during their family medical leave in some cases. People are able to do so if the reasons for taking the leave are covered by their employers’ leave policy or by state law.

Employers may also mandate that employees use up their accrued vacation time during their FMLA leave along with their accrued sick time if the employer’s sick leave policy covers the reasons for the leave.

People are required to follow their company’s normal procedures and rules for taking paid leave, including notice. If a person must take emergency FMLA leave, the person will not have to begin using up their vacation time until after the notice period passes.

Scheduling and notice requirements

If a person’s need for the leave is foreseeable, the FMLA rules require the employee to give his or her employer 30 days notice. If it is not foreseeable, a person must give as much notice as is possible under his or her circumstances.

Employees are able to take intermittent FMLA leave as well. For example, people may use it to go to regular dialysis appointments or physical therapy sessions.

The New Jersey Family Leave Act

While Pennsylvania does not have its own family leave law, New Jersey does. In New Jersey, the state law is known as the New Jersey Family Leave Act. It tracks the federal FMLA fairly closely, but it does have a few differences. Under the state’s law, workers may not take the leave to recuperate from their own serious health conditions. New Jersey’s law is instead in place to allow workers to take unpaid time off from work to care for seriously ill family members. While the federal FMLA allows people to take up to 12 weeks per 12 months, the state’s law only allows eligible employees to take up to 12 weeks per 24 months.

New Jersey does have a type of short-term disability insurance that is offered by the state for wage replacement when people are off on an unpaid medical or family leave from their jobs.

Employer policies and benefits

A number of employers choose to offer family and medical leave benefits to their workers that exceed those that are provided under federal and state law. Examples include smaller employers that choose to offer unpaid leave when they would not be required to do so. People may want to check with their employer about what types of family and medical leave benefits that might be available to them.

It is important for employees to do their homework in order to make certain that they understand how taking leave works and how it needs to be approached. If a person’s leave request is denied or his or her employer retaliates against him or her for taking leave, the person may want to get help from an employment law attorney at Swartz and Swidler. Call us today to schedule your consultation.