While not all employers are covered under the federal Family and Medical Leave Act (FMLA), those that are must allow their eligible employees to take up to 12 weeks of leave off from work each year to care for their own or their immediate family members’ serious medical conditions. This type of leave is unpaid. Employees can use their accrued paid time off and vacation days. Employers can also require employees to use their accumulated leave days while they take FMLA leave. New Jersey employees might also be eligible to receive up to six weeks of pay under the New Jersey Paid Family Leave Act. Here is some information about the different types of FMLA leave that you might take from the attorneys at Swartz Swidler.
Coverage of the FMLA
Employers with 50 or more employees that work within a 75-mile radius are covered by the FMLA. Eligible employees include those who work for covered employers and who have worked at least 1,250 hours within the 12 months before the date of the requested leave. All people have the right to take leave under the FMLA to care for a new child regardless of gender, including newborns, newly adopted children, and children placed in their homes through foster care.
Pregnant mothers can take FMLA leave during their pregnancies if they are prevented from working because of pregnancy-related conditions. However, women who take leave during pregnancy will still be limited to 12 weeks off during the year, so they will have less time to take after their children are born. However, FMLA leave taken for pregnancy will not count towards the available leave under the New Jersey Family Leave Act.
Similarly, employees can take leave before a child’s foster care placement or adoption to prepare for the child’s arrival. If two spouses both work for the same covered employer, the employer can limit the total time the spouses can take off to 12 weeks to care for a new child.
Eligible employees can also take time off from work under the FMLA to care for their family members’ serious health conditions. Family members include spouses, children, or parents under the FMLA. Children can be the adopted, step, biological, foster, or legal wards of the employee that requests leave.
Employees can also take leave under the FMLA to care for their own serious medical conditions. To qualify, the employees must be unable to perform the essential tasks of their jobs because of their health conditions. Serious health conditions are those that incapacitate the employee for more than three calendar days with two or more visits to a doctor or one visit that results in ongoing treatment supervised by the doctor.
Leave can be taken in a single chunk or on an intermittent schedule. Employees who take intermittent leave should try to work with the employer’s scheduling requirements. The employer might be allowed to assign the employee taking intermittent leave to a different job to accommodate the schedule.
Types of Leave Under the FMLA
The three main types of FMLA leave are described below.
Continuous FMLA Leave
After the birth or adoption of a new child, many parents opt to take 12 weeks of unpaid leave under the FMLA in a continuous chunk of time. Eligible employees can also take 12 weeks of unpaid FMLA leave for other listed purposes. However, employers cannot force their employees to use all of their FMLA leave at one time. Employees who need to take a continuous leave of 12 weeks must notify their supervisors as soon as possible once they learn of their need to take time off from work. If they cannot predict that they will need to take 12 weeks off from work, they should notify their employers as soon as they need it. For example, if someone is injured in a car accident and cannot return to work because of their injuries, they should still notify the employer. The employer can ask for medical documentation that supports the employee’s request for FMLA leave.
Employees can also request leave for less time for any of the listed reasons. When they do ask for less time, they should still keep track of their unpaid FMLA leave and keep in contact with their Human Resources department to ensure that their leave and work time are properly documented and accounted for.
Intermittent FMLA Leave
Employers must let employees take FMLA leave in the smallest amount of time that they also allow employees to use paid time off. For example, if an employee can take PTO for one hour, the employer must also allow the employee to use FMLA leave for one hour.
Intermittent leave might be taken by an employee to attend regular appointments with their doctors for their health conditions. For example, a pregnant employee might take intermittent leave to attend prenatal appointments. Employees who need to take intermittent leave should make sure to request it ahead of time. Employers will likely require documentation of the employee’s medical condition and need for intermittent leave.
FMLA Leave to Care for Military Service Members
Eligible employees can take up to 26 weeks of unpaid leave under the FMLA to care for a military service family member, including those who are on active duty or who were discharged from the military for health reasons. The military family member can be related by blood, birth, or marriage or designated as the service member’s next of kin.
Speak to Swartz Swidler
If you need to take leave under the FMLA, make sure to notify your employer of your need for leave as soon as possible. If your employer refuses your leave request or retaliates against you for taking leave under the FMLA, you should speak to the attorneys at Swartz Swidler. Call us for a free consultation at (856) 685-7420.
