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Nov07

Disability and Employer Rights

I have an employee who requested a leave of absence to recover from an ectopic pregnancy and loss of the fetus. I sent her the forms on 10/14/15 and to date have not received them back nor any other documentation (i.e. Doctor’s note) to support her request for leave. She is not covered under the FMLA as she hasn’t worked for us long enough. As I am in NJ she does qualify for our Short Term Disability but as stated I haven’t as yet received any paperwork back from her. The first day she did not report to work she did not call out. She contacted her Supervisor the next day via text to say she was in the hospital and would be having surgery. This was on 9/29/15. It wasn’t until I sent a certified letter requesting her status that she responded (despite multiple phone calls and text messages from her supervisor) with the request for a leave of absence. I sent her the paperwork and to date have heard nothing from her. What are our options with regards to terminating her?

Employers in NJ are subject to both the federal Family & Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA). Both laws require covered employers to provide eligible employees with 12 weeks of unpaid, job protected leave during a 12-month period for specified family and medical reasons.

An eligible employee under the FMLA is one who has worked for an employer for a minimum of 12 months and worked 1,250 hours in the 12 months preceding the leave. The NJFLA requires the same 12-month employment period but reduces the hour requirement to 1,000 hours in the preceding 12 months for eligibility. Keep in mind, the minimum 12-month period of working doesn’t have to be consecutive months of employment. So, vacation and sick time as well as partial weeks worked are considered towards the 12-month period of employment. However, an employee must still meet the hour requirement for leave eligibility.

It is unlawful for any employer to discharge or otherwise discriminate against an employee for exercising his right under either the FMLA or NJFLA.

If the employee still doesn’t meet the criteria for coverage under the FMLA or NJFLA then offering a leave of absence is at the employer’s discretion. Of course, it’s advisable to treat all similarly situated employees in the same manner.

Once a leave has been offered but the employee fails to return the appropriate paperwork, the next course of action is again at the employer’s discretion. Consider how long you’ve waited in the past for employee’s to submit their leave paperwork. It’s recommended to allow this employee the same considerations you’ve given to other workers.

It’s best to send the employee a final notice stating that the leave paperwork was sent on 10/14 but to date no information has been received and there has been no contact from the employee. Clearly state that if the requested documentation is not received by a specified date (one week from the date of the letter is acceptable) then the employee will be terminated. If you’ve attempted to contact the employee in other ways (phone/text/email) since 10/14 then include a general statement of such. The purpose of the letter is to warn the employee of the consequences of not providing the documentation and to demonstrate that you’ve attempted to accommodate her request for leave.

The letter should be sent certified to ensure it’s received. Once the deadline has passed and there has been no contact from the employee, termination would be acceptable.

This entry was posted on Saturday, November 7th, 2015 at 7:28 pm and is filed under
Benefits, Labor Laws, Termination.
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