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,"
Josef Stalin, "is that they require more tending than
Such may have been the case, but times change. Russia’s old gray
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
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
in New Brunswick.
Cost: $129. Call 732-214-8500.
"Basically, these statutes are solid," says Degen, an attorney
with Genova, Burns & Veronia. "Each is designed to make
for the employee’s personal needs. Yet each state and federal
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
years. Raised in Bridgewater, Degen holds bachelor’s degree from the
University of Virginia and a master’s degree in human resource
from Upsala University. The ensuing Rutgers law degree became
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
workers and their union officials know their rights better than their
Maxwell agrees that knowledge of the law is important, and adds that
employers need to school themselves in which laws apply to what
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.
unpaid leave to either parent when a child is born or adopted. So
does the New Jersey FLA. Both insist the employee’s job — or one
substantially like it — be held open while he is away. However,
the federal FMLA only applies to firms with 50 or more employees
within a 75-mile radius of the business. New Jersey’s law affects
50-person companies if even one of its employees lives in the Garden
mistake made regarding the Americans with Disability Act," says
Maxwell. If an employee is to be docked for his absent time, the
must notify him of this sick time deduction within two days. The
can not deduct retroactively nor can he neglect to remind him that
the time is unpaid. You snooze, you lose, and your worker gets a
require a doctor’s note after an absence of, say, three days. It is
important that such a note delineate not only the nature of the
but exactly when the employee can return to work.
Employers who suspect they have a malingerer on their hands have the
right to require the worker be examined by the company doctor. But
beware, the burden of proof for insisting on this second exam lies
with the employer.
seldom litigated clause states that "key employees" —
the top five percent of earners within the company — may be denied
the 12-week family leave. (Please bring a note from your accountant.)
But here again, the employer must inform the key employee of his
at the first request for leave. Saying yes, then reconsidering and
filling the job, is not allowed.
that it is worthwhile for employers to spend some time becoming
with the myriad — and sometimes conflicting — rules governing
when an employee can be away from his desk.
— Bart Jackson
A bill pending in Trenton would make New Jersey the
first state in the country to offer paid time off to parents —
fathers as well as mothers — after the birth or adoption of a
child. The bill, introduced into the Assembly by
(D-Middlesex), would provide up to 12 weeks of unemployment insurance
(UI) benefits, at a maximum of approximately $414 a week, to enable
workers to take leave to spend time with a newborn or newly-adopted
The language of the bill says it "represents a long overdue
of the UI system, making it better able to serve the needs of the
growing number of working families who rely on the incomes of more
than one wage earner and need income replacement for involuntary
caused by family necessities outside of the workplace, as well as
unemployment caused by layoffs." The New Jersey Chamber of
unmoved by this reasoning, opposes the bill, calling it an unfair
burden for employers.
On Friday, June 22, at 8 a.m. Friscia and
president of government affairs for the NJ State Chamber of Commerce,
lay out their positions on this potentially groundbreaking legislation
at a meeting of the Middlesex County Regional Chamber of Commerce
at DeVry College of Technology in Monmouth Junction. Cost: $25 for
non-members; free for members. Call 732-821-1700.
"The business community is extremely concerned about this
says Leonard. Not only would it extend an unprecedented benefit, but,
perhaps even more significantly, it would extend it to workers in
virtually every company in the state. For while the federal Family
and Medical Leave Act applies only to employees in companies with
at least 50 workers, the New Jersey legislation would include
with as few as two employees.
The federal Family and Medical Leave Act offers unpaid time off from
work to an employee in a 50-person or larger company for the birth
or adoption of a child, or for a wide range of other medical
involving the employee or a member of his family.
Like employees throughout the country, New Jersey workers at larger
companies can take advantage of the federal law to carve out
time after a baby arrives — albeit unpaid. And like employees
in just four other states, New Jersey women can collect temporary
disability for up to 26 weeks after the birth of a child. "The
average amount of time off is 11 weeks," says Leonard. His own
wife "worked on a Friday, and had our daughter on Saturday."
Leonard’s wife was away from work for seven weeks. The length of time
during which a woman can collect temporary disability before and after
the birth of a child is based on medical considerations, and requires
input from her doctor.
Fathers, considered to be free of the medical issues surrounding the
birth of their children, are not eligible for the temporary disability
payments. Under the proposed legislation, however, dads would get
equal treatment, and up to 12 weeks of paid time off to bond with
their progeny — and master those tricky disposable diaper tabs.
Such family-centric leaves have been common in Europe for ages, and
are important in boosting important social values, say the bill’s
proponents. The bill posits that such time off will "strengthen
family bonds and help working parents to strengthen their attachment
to the workforce, bringing New Jersey up-to-date with the worker
security systems of most nations, including every industrialized
outside of the United States."
Leonard is not buying this line. "The employer
be given the right to make personnel decisions," he says.
the government steps in, it limits some options." While employers
would not have to pay employees during their time off, and the bill’s
sponsors say "it is unlikely that this bill would cause increased
UI costs for any employer in the foreseeable future," there could
be disruption. Leonard says the effect would be most severe on small
businesses, increasing the workload of the remaining employees,
tasks 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:
and Medical Leave Act, employees can cut up the time they take off
into tiny segments, perhaps one day a week, or even half a day. Under
this legislation, however, the time would have to be taken in one,
continuous period, unless the employer agreed to another arrangement.
be charged for benefits paid during a qualified leave of absence under
the employer with notice that they intend to take the time off at
least 30 days ahead of time. Failure to provide this notice will
can not, at the same time, collect another unemployment payment. And
those who elect to collect under this legislation will have their
eligibility for unemployment insurance for the rest of the year
by the amount they receive.
this benefit would cost $42.3 million in New Jersey. The bill’s
say it is unlikely that paying this amount would raise employer’s
mandated contributions to the UI fund, but, as a safeguard, they have
included a provision that would allow the Commissioner of Labor to
refuse new claims if the amount paid out during a calendar year were
to rise to $130 million.
this legislation is that it does not require employers to hold a place
open for employees who chose to take this leave. The federal Family
and Medical Leave Act does impose this requirement. Should this bill
pass, there could be confusion on both sides. Employees, in many
would be nervous throughout their time off, wondering if they would
have a job when their leaves ended. And employers, especially those
heading up small companies, would have to decide whether to replace
an absent worker, especially a valuable contributor.
Corrections or additions?
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