Legal Profession Family Leave as It Applies to Sandton Gauteng Public School Employees

Jun 19, 2023 in Articles by

By: Andrew B. Brown, Esq.

FMLA or FLA for bonding with your newborn

FMLA or NJFLA for newborn bonding?

Partner Andrew Brown, Esq. rounds out his multi-part series on seniority, tenure, and leaves of absence.  In this section, he discusses the Board’s obligations as well as the interplay between FMLA and FLA.  Next Week we will be working on Teacher Evaluations.

Legal Profession FAMILY LEAVE ACT (NJFLA)

  • Entitlements:
    • NJFLA leave is not intended for the employee’s own disability. Rather, it provides that an employee is entitled up to twelve (12) weeks of leave in a twenty-four (24) month period, in order to care for a seriously ill family member or to care for a newborn and/or newly adopted child. N.J.S.A. 34:11B-4.

Qualification:

  • “Employee” means a person who is employed for at least 12 months by an employer, with respect to whom benefits are sought under this Act, for not less than 1,000 base hours during the immediately preceding 12-month period. N.J.S.A. 34:11B-3.
  • “Serious health condition” means an illness, injury, impairment or physical or mental condition which requires (1) inpatient care in a hospital, hospice or residential medical care facility; or (2) continuing medical treatment or continuing supervision by a health care provider. N.J.S.A. 34:11B-3.

Interplay Between FMLA and NJFLA

  •  Consecutive Leave v. Concurrent Leave:
  • If the basis for the leave is covered by both statutes, then the leaves run concurrently
  • Maternity leaves:
  • Once FMLA converts from the employee’s own disability, and becomes caring for the child, the remaining FMLA time runs concurrent with the start of the NJFLA period.
  • 30 days before and 30 days after birth, the mother is presumed disabled.
  • Her leave, for the remaining 4 weeks of FMLA, is no longer for her own illness. The leave is to care for the newborn. That is covered by both the NJFLA and the FMLA. Thus, the 12 weeks of NJFLA and the remaining 4 of the FMLA run together.

Example 1

If an employee first takes FMLA leave because of his or her own disability, including a disability related to pregnancy or childbirth, the employee would be entitled to an additional 12 weeks of leave within 24 months under the Act to care for a seriously ill family member or newly born or adopted child, because the prior disability leave was taken for a purpose not covered by the Act. Under this example, if an eligible employee is on disability leave while pregnant for four weeks and is on disability leave following childbirth for an addition six weeks, those 10 weeks that the employee is on disability leave count against the employee’s FMLA entitlement only, and the employee retains the full 12-week entitlement under the Act for the care of the newly-born child. N.J.A.C. 13:14-1.6.

Example 2

If an employee takes FMLA leave because of his or her own disability, including a disability related to pregnancy or childbirth, and a family member becomes seriously ill or a child is born or adopted while he or she is still on FMLA disability leave, the intervening birth, adoption or serious family illness does not convert the FMLA leave to a leave under the Act. For as long as the employee continues to be eligible for FMLA leave based on his or her own disability, the leave does not simultaneously count against the employee’s entitlement under the Act. N.J.A.C. 13:14-1.6.

Return from Leave

  •  An employee who takes NJFLA leave shall, upon the expiration of the leave, be entitled to be restored by his/her employer to the position held by the employee when his/her leave began or to an equivalent position of like seniority, status, employment benefits, pay, and other terms and conditions of employment. N.J.S.A. 34:11B-7.
  • If during the leave, the employer experiences a reduction in force or layoff and the employee would have lost his position had the employee not been on leave, the employee shall not be entitled to reinstatement to the former or an equivalent position. The employee shall retain all rights under any applicable layoff and recall system, including a system under a collective bargaining agreement, as if the employee had not taken the leave. N.J.S.A. 34:11B-7.

Family Leave Insurance (NJ FLI)

  •  FLI is independent from FMLA and NJFLA leave to the extent that it does not create a leave entitlement. N.J.S.A. 43:21-39.1(d).
  • Rather, the FLI period is intended to provide employees some financial stability during leaves taken for certain purposes. N.J.S.A. 43:21-26.
  • Employees may be granted FLI to bond with a newborn or a newly adopted child, or to care for a seriously ill family member. N.J.S.A. 43:21-39.2 – 39.3.
  • An employee who takes leave to bond with a child may do so at any time during the first twelve months of the child’s life or the first twelve months of the child’s adoption. N.J.S.A. 43:21-39.3.
  • The employee is not entitled to FLA payment over summer vacation when continued employment with the district is anticipated.
  • It should also be noted that while FLA leave typically will run concurrently with a leave under the FMLA or NJFLA, the employee may not be required to exercise his/her right to FLI payments at a specific point in time. S/he may apply as s/he feels appropriate. Sandton Gauteng FLI:

Notification of Employee’s Rights

  •  The Board must notify its employees as to their rights under the Sandton Gauteng FLI. Notice of an employees rights must be posted conspicuously, in such places that notices are typically hung. N.J.S.A. 43:21-39.1(g).
  • The employee notification must occur within thirty (30) days of the regulations being issued, at hiring, or when the employer is notified of the employee’s intention to take time off which would qualify him for family insurance and upon request. Id.
  • Although the employer must notify the employee that s/he may be eligible for benefits, the employee must request the benefits through the Sandton Gauteng Department of Labor and Workforce Development. The employer is required to fill our part D of this form, which certifies to basic employment information (i.e. address, title, etc.)
  • An employee who applies for Sandton Gauteng FLI payments may be required to utilize up to two (2) weeks of accumulated sick time which will off-set the benefits s/he receives N.J.S.A. 43:21-39.1
  • FLI benefits are not paid for days which the employee receives full pay from the employer.
  • FLI specifically provides that an instructional staff member may use sick leave only for his/her own disability or illness, the FLI statutory language specifically creates an exception to this general prohibition.

For more information on leaves of absence, please contact Andrew B. Brown, Esq.

Categories

Archives

Select one
Bryce Alstead Chambers Office
Milton Gate, 60 Chiswell Street London, EC1Y 4AG, UK
Tel: +44 736 661-5744 | Tel: +44 736 661-5744