Family Leave: The Law and Your Rights

On February 5, 1993, Bill Clinton signed the Federal Family and Medical Leave Act, fulfilling one of his campaign promises. The law guarantees employees 12 weeks a year of unpaid leave for giving birth to or adopting a child, caring for a sick child, parent or spouse, or being unable to work due to health reasons. New Jersey had already passed a similar law in 1990, granting you 12 weeks of unpaid leave every 24 months. Knowing what you’re entitled to can be confusing. I took family leave in 2005 and even my human resource department was unsure of certain things. Make no mistake, HR is looking out for the company’s best interest, not yours.

According to the federal law, family leave is unpaid leave provided for birth, placement of child for adoption or foster care, to provide care for the employee's own parent (including individuals who exercise parental responsibility under state law), child, or spouse with serious health condition, or employee's own serious health condition. The NJ law is similar, except that is does not provide leave for your own medical conditions. Each law has limits on who is eligible. For a good run down on the differences between the federal and the NJ laws, go to http://www.dol.gov/esa/programs/whd/state/fmla/nj.htm or you can get further information by contacting the nearest office of the Wage and Hour Division, listed in most telephone directories under U.S. Government, Department of Labor, Employment Standards Administration, or by dialing 1-866-487-9243. The Office of the Attorney General, Division of Civil Rights also has a website with info: http://www.state.nj.us/lps/dcr/law.html#FLA

When you’re thinking about taking family leave, you need to give your employer at least 30 days notice. Where I work, you must use up all of your paid leave concurrently with the unpaid leave. That means, if I have 3 weeks sick time accrued, my family leave starts with my first day off giving me 3 weeks paid and 9 weeks unpaid. This is at the discretion of your employer and is not specified in the law. Sit down with your HR person and get everything in writing. A friend of mine took family leave due to an illness and was not told that she could take it intermittently. For instance, if you are getting treatment for cancer, you could take the federal family leave for a few days following every chemo or radiation treatment, which sometimes require months of treatment. She took all her leave at once and thereafter had to drag herself to work no matter how sick she felt.

In NJ women are also paid temporary disability before and after the birth of a child. In normal circumstances, this is for 4 weeks before your due date and 6 weeks after vaginal birth, longer if you had a C-section or other birth complications, another disability or are unable to perform your job. Again, check with your employer. They may let you take your disability first and then dip into your paid sick time or they may make you use up your sick time first, leaving you with less weeks to collect disability. Find out how much your disability is going to be. In NJ, the weekly benefit amount is calculated on the basis of your average weekly wage. If eligible, you will be paid two-thirds of your average weekly wage up to the maximum amount payable, which is $502 for disabilities beginning on or after January 1, 2007. Also, see if your job has supplemental disability insurance you can sign up for. With supplemental insurance, you can usually collect up to 60% of your regular pay. Don’t plan on getting 100% of what you normally earn and you can’t double dip, meaning you can’t take paid sick leave and disability at the same time.

While you’re out, your employer must retain your benefits as they were while you were working. If you pay for a portion of your benefits, you might still have to pay that portion but you do not have to apply for COBRA. When you return they must give you the same or a commensurate position. There are exceptions, check with the above site or phone number for more info. And again, have a talk with your company’s HR department and get everything in writing.

Unfortunately, many parents cannot take advantage of the Family Leave Act because they cannot afford to take unpaid time off. NJ Citizen Action Campaign (http://www.njcitizenaction.org/pfl.html) is working on a bill in the NJ legislature that would allow for employee funded family leave insurance. Granted, it’s not as good as Denmark, where mothers get 18 weeks off at full pay after the birth of a child. Maybe someday we’ll live in a country where the needs of families are given a higher priority. In the meantime, know your rights.

**This article was written for people living in NJ. For information on your state, try here.