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 weeks

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

living

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

State.

Notify employees on time. "This is probably the

biggest

mistake made regarding the Americans with Disability Act," says

Maxwell. If an employee is to be docked for his absent time, the

employer

must notify him of this sick time deduction within two days. The

employer

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

little

paid holiday.

Get a sick note. Employers can — and should —

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

illness,

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.

It is okay to deny leave to your best employees. This

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

denial

at the first request for leave. Saying yes, then reconsidering and

filling the job, is not allowed.

While another time-consuming job is never good news, it appears

that it is worthwhile for employers to spend some time becoming

acquainted

with the myriad — and sometimes conflicting — rules governing

when an employee can be away from his desk.

— Bart Jackson

Top Of Page
Paid Family Leave? Possibly, in New Jersey

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 Arline Friscia

(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

child.

The language of the bill says it "represents a long overdue

modernization

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

unemployment

caused by family necessities outside of the workplace, as well as

unemployment caused by layoffs." The New Jersey Chamber of

Commerce,

unmoved by this reasoning, opposes the bill, calling it an unfair

burden for employers.

On Friday, June 22, at 8 a.m. Friscia and Jim Leonard, vice

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

bill,"

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

companies

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

situations

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

caretaking

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

income

security systems of most nations, including every industrialized

nation

outside of the United States."

Leonard is not buying this line. "The employer

should

be given the right to make personnel decisions," he says.

"When

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,

leaving

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:

Leave is to be taken in one shot. Under the federal Family

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.

Employers are not charged. No employer’s UI account would

be charged for benefits paid during a qualified leave of absence under

this legislation.

Employees must give notice. Prospective parents must

provide

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

reduce

benefits.

No double-dipping is allowed. Parents receiving this

benefit

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

reduced

by the amount they receive.

Some parents could be shut out. It is estimated that

providing

this benefit would cost $42.3 million in New Jersey. The bill’s

sponsors

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.

Plenty of questions remain. Leonard says one odd thing about

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

cases,

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.


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