Who Is Protected Under the FMLA?

To fall under the protection of the FMLA, here are the basic requirements:

• You have worked for your employer for at least 12 months:
• You have at least 1,250 hours of service for your employer during the 12 months before your leave; and
• Your employer has at least 50 employees working within 75 miles of your work location.

Unfortunately, because the law only covers employees who work for large companies –ones that have at least 50 employees at their worksite or within a 75-mile radius of where they work – it excludes from protection the many millions of employees in this country who work for smaller companies. In addition, because the law covers only employees who work full-time (or nearly full-time), it does not cover the millions more American workers who are forced to cobble together a living by working multiple part-time jobs. As a result, only a minority of the American workforce is even covered by the law.

What is Protected Under the FMLA?

The Family and Medical Leave Act (FMLA) is a federal law that provides eligible employees with up to 12 weeks of job-protected unpaid leave in a 12-month period in the event of any of the following:

• The birth, adoption, or foster placement of a child with you;
• Your serious mental or physical health condition that makes you unable to work;
• To care for your spouse, child, or parent with a serious mental or physical health condition, and
• Certain qualifying reasons related to the foreign deployment of your spouse, child, or parent who is a military service member.

The New Jersey Family Leave Act: Good News and Bad News

The good news is that when compared with the FMLA,  the New Jersey Family Leave Act (NJFLA) covers many more employers. To fall under the coverage of the NJFLA, an employer is covered if it has 30 employees (not the 50 employees under the FMLA) located anywhere in the world (not just within 75 miles of your work location.  The NJFLA also covers all state or local government entities, regardless of their size.

The bad news is that, unlike the federal FMLA, the New Jersey Family Leave Act provides protection only when it is a family member who is ill and needs care, not if you are the person who is ill.

In sum, as an employee, you are entitled to take NJFLA leave for the following reasons:

• To care for or bond with a child, as long as the leave begins within one year of the child’s birth or placement for adoption or for foster care;
• Care for a family member or someone who is the equivalent of family, who has a serious health condition; or
• Provide required care or treatment for a child during a state of emergency if their school or place of care is closed due to an epidemic (such as COVID)or other public health emergencies.

Patricia Barasch: Attorney with Experience Handling FMLA Cases

As an FMLA attorney in New Jersey, Patricia Barasch has found that there are some employers who resent an employee who chooses to invoke the protections of the FMLA to take time off from work. Once that employee has returned to work, the employer will look for reasons (or make up reasons) to use to terminate the employee or make that employee’s life so miserable that he or she is forced to quit. Moreover, employers may attempt to argue that an employee who seeks protection under the FMLA really doesn’t have a “serious health condition” and therefore isn’t entitled to leave. And while the law entitles an employee who takes FMLA leave to reinstatement, an employer may attempt to deny reinstatement because it claims there was a “layoff” during the leave or because it “discovered” that the employee had engaged in some previously undiscovered wrongdoing. Many of the FMLA cases we have handled arise under the anti-retaliation provisions of the FMLA, which make it unlawful for an employer to engage in such conduct.

Patrica Barasch has handled numerous, and often extremely complex, FMLA cases during her more than 30 years of experience representing employees. She enjoys the challenge of tackling the most complex legal issues under the FMLA – and there are plenty of them — and taking on the biggest corporations in New Jersey.