FMLA time Accrue on Disability

We have an employee who is out for the second time in nine months. The first time she was out she used her 12 weeks of FMLA leave. She is now out on NJ Family Leave. My question is, does she accrue time form federal FMLA leave while she is out on NJ Family Leave?

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  • The federal law allows the employer to run all the programs and leaves concurrently. I hope NJ law doesn't require the employer to observe one time period independent of the other. That's a stretch of sensibilities.....allowing a person to be absent due to federal, then state leave laws. Surely not.
  • [font size="1" color="#FF0000"]LAST EDITED ON 06-27-02 AT 08:57AM (CST)[/font][p]Actually, yes NJ FL law does provide for that! An empee is eligible to take NJ FL over an above federal FMLA if the leave is to care for a spouse, child or parent. We do run the two concurrent when possible. So back to my original question then. Does FMLA leave accrue during NJ FL? She had used her FMLA leave for her own personal disability (which NJ FL does not provide for).
  • I think you are talking about 2 separate laws that may or may not run concurrent. So, because they are separate, FMLA could come into play again if she meets the qualifications (time worked & year of service) for a FMLA event and how you track FMLA time. Calendar year? Rolling forward? Rolling backward?

  • >So back to my original question then. Does FMLA leave accrue during
    >NJ FL?

    If by 'accrue' you mean can you count the time she's out on New Jersey leave as FMLA, unless NJ law says you cannot, I certainly would. Why Not? NJ apparently decided in its wisdom to go a distance further than that allowed by federal law; and, unless prohibited by NJ, I would certainly do all possible to be sure they count as concurrent programs so as to somehow limit how long an employee can be out.



  • I looked this up in the FMLA Regs:

    New Jersey Family Leave Act provides 12 weeks in a one-year period for care of newborn or adopted child, serious health condition of a family member or employee, care for child even if not "serious". Female employees are entitled to an additional 12 weeks for medical condition related to pregnancy. Size of employer: 25 or more employees. Eligibility: 1000 hours over past 12 months.

    "Section 825.701 (CFR) - Do state laws providing family and medical leave still apply?

    (a) Nothing in FMLA supersedes any provision of State or local law that provides greater family or medical leave rights than those provided by FMLA. The Department of Labor will not, however, enforce State family or medical leave laws and States may not enforce the FMLA. Employees are not required to designate whether the leave they are taking is FMLA leave or leave under State Law and an employer must comply with the appropriate (applicable) provisions of both. An employer covered by one law and not the other has to comply only with the law under which it is covered. Similarly, an employee eligible under only one law must receive benefits in accordance with that law. If leave qualifies for FMLA leave and leave under state law, the leave used counts against the employee's entitlement under both laws. Examples of the interaction between FMLA and State Laws include:

    (1) If state law provides 16 weeks of leave entitlement over two years, an employee would be entitled to take 16 weeks one year under state law and 12 weeks the next year under FMLA. Health benefits maintenance under FMLA would be applicable only to the first 12 weeks of leave entitlement each year. If the employee took 12 weeks the first year, the employee would be entitled to a maximum of 12 weeks the second year under FMLA (not 16 weeks). An employee would not be entitled to 28 weeks in one year."

    The regs have several more paragraphs but I hope this helps. You can always look up the FMLA regs on-line they are CFR Section 825.100- 825.800

  • I'm surprised somebody hasn't challenged New Jersey's disparate treatment of non-pregnant males! xx(
  • Yikes! Thanks for the input. However, I'm still looking for an opinion on whether or not an employee accrues time (days) for FMLA leave while out on other leave. I'll try to give the example. We use a rolling forward method here. The employee went out October 1st 2001 for 12 weeks for her own personal injury. June 17, 2002 she went out on her own personal sick time due to pregnancy. July 1st she gave birth to a baby and is now out on NJ Family Leave to care for the newborn child. Under FMLA rule, when will she be entitled to an additional 12 weeks of FMLA leave?
  • I also use the rolling 12 month but I measure backward. I would assume based on the information you provided, that she would be eligible for FMLA time again on October 1 2002 provided that she has worked the minimum 1250 hours of service during the 12 month period immediately preceding the commencement of the leave You can find more info on FMLA eligibility in Sec. 825-110. Good luck!
  • njjel,

    Try contacting the New Jersey attorneys who write your New Jersey Employment Law Letter. They may be able to help. Here's a link to their contact information:

    [url]www.hrhero.com/njemp.shtml#atty[/url]

    Christy Reeder
    Website Managing Editor
    [url]www.HRhero.com[/url]
  • [font size="1" color="#FF0000"]LAST EDITED ON 06-28-02 AT 09:53AM (CST)[/font][p]Has she worked 1250 hours since July, 2001? Probably not, so FMLA would not apply.

    To qualify for FMLA the employee must have worked 1250 hours in the previous 12 months and have an accumlated employment of at least 1 year. This employee would meet the 1 year employment requirement, but won't be eligible for more FMLA time until she works for 1250 hours (approximately 8 months).
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