Paid Family Leave? Possibly, in New Jersey
Corrections or additions?
These articles were prepared for the June 20, 2001
edition of U.S. 1 Newspaper. All rights reserved.
Employee Time Off Rules: Complicated, Confusing
The trouble with people,”
grumbled
Josef Stalin, “is that they require more tending than
machines.”
Such may have been the case, but times change. Russia’s old gray
dictator
lies a moldering. The year of Orwellian predictions has long passed,
and we now navigate precariously amidst the fragile magnetics of our
computer revolution. At this point, when PCs can be more capricious
than early-summer weather, it’s difficult to tell who requires more
tending. And yet everyone from our last president on down says America
needs to humanize its workplace. Consider the needs of the whole
worker,
comes the cry.
This sentiment recently has sparked a rush to legislate, resulting
in a battery of overlapping and frequently conflicting laws, including
the federal Family and Medical leave Act (FMLA), the New Jersey Family
Leave Act (FLA), the Americans with Disability Act (ADA), changes
to the Workers Compensation Act, and more. To aid employers, human
resource workers, union officials, attorneys in better understanding
this legal smorgasbord, the New Jersey Institute of Continuing Legal
Education (ICLE) presents a seminar, “Time Off from Work: Update
2001,” on Thursday, June 21, at 9 a.m. at the New Jersey Law
Center
in New Brunswick. Lynn S. Degen moderates. Panelists are
attorneys
Michael Faillace, Christopher Lenzo, and Joanne
Maxwell.
Cost: $129. Call 732-214-8500.
“Basically, these statutes are solid,” says Degen, an attorney
with Genova, Burns & Veronia. “Each is designed to make
accommodation
for the employee’s personal needs. Yet each state and federal
regulation
has its own confusing threshold.” For example, no employer is
required by law to offer vacation or any pre-determined number of
sick days. However, a temporarily disabled employee may legally, under
certain circumstance, claim weeks of paid sick time while her job
is held open.
Such are the labor conundrums with which Degen has wrestled for
several
years. Raised in Bridgewater, Degen holds bachelor’s degree from the
University of Virginia and a master’s degree in human resource
management
from Upsala University. The ensuing Rutgers law degree became
primarily
a way to broaden her human resource capabilities.
Having seen the consequences of ignorance, Degen strongly suggests
that employers avail themselves of either specialized legal or human
resource council. Employees jealously guard their time off and
typically
workers and their union officials know their rights better than their
employers do.
Maxwell agrees that knowledge of the law is important, and adds that
employers need to school themselves in which laws apply to what
situations.
Maxwell is an attorney with Newark’s Littler Mendelson. Here is her
advice for knowing when which employees are entitled to what amount
of time away from work.
Know which law applies. The federal FMLA affords 12 weeksunpaid leave to either parent when a child is born or adopted. Sodoes the New Jersey FLA. Both insist the employee’s job — or onesubstantially like it — be held open while he is away. However,the federal FMLA only applies to firms with 50 or more employeeslivingwithin a 75-mile radius of the business. New Jersey’s law affects50-person companies if even one of its employees lives in the GardenState.Notify employees on time. “This is probably thebiggestmistake made regarding the Americans with Disability Act,” saysMaxwell. If an employee is to be docked for his absent time, theemployermust notify him of this sick time deduction within two days. Theemployercan not deduct retroactively nor can he neglect to remind him thatthe time is unpaid. You snooze, you lose, and your worker gets alittlepaid holiday.Get a sick note. Employers can — and should —require a doctor’s note after an absence of, say, three days. It isimportant that such a note delineate not only the nature of theillness,but exactly when the employee can return to work.Employers who suspect they have a malingerer on their hands have theright to require the worker be examined by the company doctor. Butbeware, the burden of proof for insisting on this second exam lieswith the employer.It is okay to deny leave to your best employees. Thisseldom litigated clause states that “key employees” —the top five percent of earners within the company — may be deniedthe 12-week family leave. (Please bring a note from your accountant.)But here again, the employer must inform the key employee of hisdenialat the first request for leave. Saying yes, then reconsidering andfilling the job, is not allowed.While another time-consuming job is never good news, it appearsthat it is worthwhile for employers to spend some time becomingacquaintedwith the myriad — and sometimes conflicting — rules governingwhen an employee can be away from his desk.— Bart JacksonTop Of PagePaid Family Leave? Possibly, in New JerseyA bill pending in Trenton would make New Jersey thefirst state in the country to offer paid time off to parents —fathers as well as mothers — after the birth or adoption of achild. The bill, introduced into the Assembly by Arline Friscia(D-Middlesex), would provide up to 12 weeks of unemployment insurance(UI) benefits, at a maximum of approximately $414 a week, to enableworkers to take leave to spend time with a newborn or newly-adoptedchild.The language of the bill says it “represents a long overduemodernizationof the UI system, making it better able to serve the needs of thegrowing number of working families who rely on the incomes of morethan one wage earner and need income replacement for involuntaryunemploymentcaused by family necessities outside of the workplace, as well asunemployment caused by layoffs.” The New Jersey Chamber ofCommerce,unmoved by this reasoning, opposes the bill, calling it an unfairburden for employers.On Friday, June 22, at 8 a.m. Friscia and Jim Leonard, vicepresident of government affairs for the NJ State Chamber of Commerce,lay out their positions on this potentially groundbreaking legislationat a meeting of the Middlesex County Regional Chamber of Commerceat DeVry College of Technology in Monmouth Junction. Cost: $25 fornon-members; free for members. Call 732-821-1700.”The business community is extremely concerned about thisbill,”says Leonard. Not only would it extend an unprecedented benefit, but,perhaps even more significantly, it would extend it to workers invirtually every company in the state. For while the federal Familyand Medical Leave Act applies only to employees in companies withat least 50 workers, the New Jersey legislation would includecompanieswith as few as two employees.The federal Family and Medical Leave Act offers unpaid time off fromwork to an employee in a 50-person or larger company for the birthor adoption of a child, or for a wide range of other medicalsituationsinvolving the employee or a member of his family.Like employees throughout the country, New Jersey workers at largercompanies can take advantage of the federal law to carve outcaretakingtime after a baby arrives — albeit unpaid. And like employeesin just four other states, New Jersey women can collect temporarydisability for up to 26 weeks after the birth of a child. “Theaverage amount of time off is 11 weeks,” says Leonard. His ownwife “worked on a Friday, and had our daughter on Saturday.”Leonard’s wife was away from work for seven weeks. The length of timeduring which a woman can collect temporary disability before and afterthe birth of a child is based on medical considerations, and requiresinput from her doctor.Fathers, considered to be free of the medical issues surrounding thebirth of their children, are not eligible for the temporary disabilitypayments. Under the proposed legislation, however, dads would getequal treatment, and up to 12 weeks of paid time off to bond withtheir progeny — and master those tricky disposable diaper tabs.Such family-centric leaves have been common in Europe for ages, andare important in boosting important social values, say the bill’sproponents. The bill posits that such time off will “strengthenfamily bonds and help working parents to strengthen their attachmentto the workforce, bringing New Jersey up-to-date with the workerincomesecurity systems of most nations, including every industrializednationoutside of the United States.”Leonard is not buying this line. “The employershouldbe given the right to make personnel decisions,” he says.”Whenthe government steps in, it limits some options.” While employerswould not have to pay employees during their time off, and the bill’ssponsors say “it is unlikely that this bill would cause increasedUI costs for any employer in the foreseeable future,” there couldbe disruption. Leonard says the effect would be most severe on smallbusinesses, increasing the workload of the remaining employees,leavingtasks undone, forcing the company to scramble for temporary help,and even threatening the viability of the business.These are some of the details of the proposed bill:Leave is to be taken in one shot. Under the federal Familyand Medical Leave Act, employees can cut up the time they take offinto tiny segments, perhaps one day a week, or even half a day. Underthis legislation, however, the time would have to be taken in one,continuous period, unless the employer agreed to another arrangement.Employers are not charged. No employer’s UI account wouldbe charged for benefits paid during a qualified leave of absence underthis legislation.Employees must give notice. Prospective parents mustprovidethe employer with notice that they intend to take the time off atleast 30 days ahead of time. Failure to provide this notice willreducebenefits.No double-dipping is allowed. Parents receiving thisbenefitcan not, at the same time, collect another unemployment payment. Andthose who elect to collect under this legislation will have theireligibility for unemployment insurance for the rest of the yearreducedby the amount they receive.Some parents could be shut out. It is estimated thatprovidingthis benefit would cost $42.3 million in New Jersey. The bill’ssponsorssay it is unlikely that paying this amount would raise employer’smandated contributions to the UI fund, but, as a safeguard, they haveincluded a provision that would allow the Commissioner of Labor torefuse new claims if the amount paid out during a calendar year wereto rise to $130 million.Plenty of questions remain. Leonard says one odd thing aboutthis legislation is that it does not require employers to hold a placeopen for employees who chose to take this leave. The federal Familyand Medical Leave Act does impose this requirement. Should this billpass, there could be confusion on both sides. Employees, in manycases,would be nervous throughout their time off, wondering if they wouldhave a job when their leaves ended. And employers, especially thoseheading up small companies, would have to decide whether to replacean absent worker, especially a valuable contributor.Previous StoryNext StoryCorrections or additions?This page is published by PrincetonInfo.com— the web site for U.S. 1 Newspaper in Princeton, New Jersey.
