They may require the employee to complete a certification to verify the dates and reason for leave. The certification may need to be completed by a healthcare provider. The employer may challenge the employee's medical certification and may get a second or third opinion. The employer should then inform the employee whether they qualify for a job protected FMLA leave or if they are not eligible.

Not everyone is eligible for FMLA leave. The FMLA applies to all employers who are public agencies – such as federal, state, or local governments and their agencies – but only applies to private employers who have at least 50 employees. The employee must also have worked for the employer for at least 12 months, as of the first day of leave, and have worked for at least 1,250 hours during the 12 months immediately before the leave. If the individual's employer is not covered by the FMLA or the individual is not otherwise eligible under the FMLA, they may still be entitled to job protected leave under the ADA.

Under the FMLA, an employee is entitled to up to 12 weeks of job protected leave in a 12-month period. The FMLA leave can be taken all at once or at different times over the 12-month period. Once 12 weeks of leave is taken, any additional leave needed within the 12-month period is no longer protected leave under the FMLA. Unlike the FMLA, job protected leave under the ADA does not have a set time limit and would be determined on an individual basis, based on what is considered a reasonable accommodation for each employee's circumstances.

Some state legislatures have also enacted their own versions of the ADA and the FMLA. These state laws may be broader and provide job protected leave to even more individuals than the federal laws.

Job Protected Leave vs. Paid Leave

An employee may be entitled to job protected leave, but that does not mean they will be paid for that time off. An employer may provide an individual with a disability, a job protected leave, but there is no requirement that the employer also pay the employee for that time off.

Many employers have paid time off or paid leave policies. To the extent that an employee's job protected leave fits within the employer's paid leave policy, the policy should be applied towards the leave, just as it would for an employee who does not have a disability. An employee may also be able to be paid for their job protected leave through their short-term disability policy if they have one.

The bottom line: As an employee, you need to initiate the conversation with your employer when you are asking for leave or an accommodation, and must engage in the "interactive discussion" about the type of leave and/or accommodation you are requesting. •

Please contact the Hamilton Law Firm LLC if you have any questions or are experiencing difficulties in the workplace as relates to a request for leave or accommodations.

ABOUT THE AUTHOR:

Ayesha Hamilton, Esq. is an attorney licensed to practice law in New Jersey, New York and Pennsylvania. She founded her law practice over 15 years ago and focuses on employment law. The Hamilton Law Firm team provides knowledgeable, compassionate and professional legal services to their individual and business clients from their offices located in Princeton, New Jersey. In addition to her law practice, Ayesha serves as a trustee on the board of directors for the New Jersey State Bar Association as well as the Mercer County Bar Association. She also serves on the Diversity Committee and the Commission on Racial Equity in the Law for the NJSBA and is the chair of the Mercer County Bar Association's Diversity Committee and co-chair of the Civil Practice Committee. In addition, she serves on the employment law committee of the New Jersey Association of Justice and is also a member of the National Employment Lawyers Association-NJ. In 2020, she was appointed to serve on the State Bar's Judicial and Prosecutorial Appointments Committee (JPAC) vetting judicial and prosecutor candidates for the NJ Governor's office. Ayesha was named the NJSBA Solo/Small Firm Attorney of the Year for 2021 Tel. (609) 945-7310 ahlawpc.com ahamilton@ahlawpc.com