Labor Law Center Blog » Blog Archive » New Jersey FMLA Changes

New Jersey FMLA Changes

April 2nd, 2008 Posted by Amelia

New Jersey employers still have time to comment on proposed changes to the FMLA regulations.

Click this link to add comments. Enter the keywords “Family and Medical Leave Act,” being sure to include the quotation marks. It is important to remember that any contact information an employer leaves will be visible to the public.

The comments may be made until April 11, 2008. After that date, the new regulations go into effect.

Several changes for employers are included in the new FMLA rules that were proposed by the U.S. Labor Department on February 11, 2008. These changes to the federal FMLA do not affect any state family leave laws.

One of the primary changes would essential broaden the scope of what is called “substitution of paid leave for FMLA.”

Under the law, employers are not required to pay employees who are taking FMLA leave. The employees may, on the other hand, take their sick leave concurrently with FMLA. For their part, employers may require them to do so.

The new rules would allow workers to use other types of accrued time off as well, including vacation time, personal leave, and paid time off (PTO), provided they meet their employers’ conditions. Employers, in turn, could require them to take the accrued paid time as FMLA leave.

Under the old rules, if Ron, as an example, has 2 weeks of accrued sick time, 5 weeks of paid vacation time, and 3 weeks of personal leave accumulated (a total of 10) he can only use the 2 weeks. Under the changes, he could use all 10 as FMLA leave. Because employees are entitled to as much as 12 weeks of FMLA leave annually, Ron would still have the right to take 2 more weeks of (unpaid) FMLA time.

Another proposed change allows employers to count FMLA leave as absent time when awarding “perfect attendance” certificates. The old rules do not allow employers to count FMLA leave as absent time. Employers and coworkers have both argued in the past that it is unfair for some workers to get attendance awards and possibly bonuses after using all 12 weeks of their FMLA leave.

More New Jersey FMLA Changes

The U.S. Labor Department is proposing some changes to the Family and Medical Leave Act, or FMLA, that would address the definition of “serious medical condition” and the process for medical certification of a condition.

These and other proposed changes will become law on April 11, 2008, at which time all employers must comply with them. Until that time, public comments will be accepted.

The Labor Department announced the proposed rule changes on February 11, 2008.

FMLA authorizes an employee to take as much as 12 weeks yearly of unpaid leave in the event of a “serious medical condition,” which could apply to the employee or to immediate family members.

Employers have the right to require that the condition be certified by a healthcare professional, in order to prevent abuse. Employers may also, under some conditions, require a second or third opinion, provided they pay.

The proposed new rules retain 6 definitions of “serious medical condition” but add some clarification on 2 terms. One definition of “serious medical condition” (it is only one of 6 of the definitions) requires that there by 3 consecutive days of incapacity and “two visits to a health care provider.” The term “two visits,” however, is left undefined in the current rules, and could mean anything, whether 2 per month or 2 per year. In the past a court has ruled that both visits must take place during the three-day incapacity period. But the proposed changes clarify the point to say that the 2 visits must happen within 30 days of the period of incapacity.

Other changes address the “Ragsdale” decision on employer penalties and make adjustments to the “fitness-for-duty” certification to return to work. The rules would determine that light duty no longer counts as FMLA leave and would allow employers to deny “Perfect Attendance” awards to workers who have taken FMLA. They would also allow for substitution of paid leave and affirm an employee’s right to settle FMLA cases out of court.

Victoria Lipnic of the U.S. Labor Department said the changes would “reflect court decisions” and “clear up ambiguities,” among other things.