The current resurgence in COVID-19 cases is a reminder of many things, not the least of which is the importance of health, especially the health of our closest loved ones. Taking care of a seriously ill or dying family member should not be an act that costs you your job and, in New Jersey, we have the Family Leave Act to protect workers. If you have been fired or otherwise punished at work for taking leave to care for a seriously ailing loved one, your employer may have violated the law. If that happens to you, do not delay in reaching out to an experienced New Jersey family leave lawyer to learn more about your legal options.
As an illustration of what a violation might look like, there’s the FLA case of a driver working for a Hoboken-based bus line company. That driver was also the son of a man who had terminal leukemia. On two occasions, the driver, armed with a medical certificate issued by the father’s doctor, took intermittent leave to tend to his dying father.
In December 2017, he sought additional leave and, in response, the employer asked for a new medical certificate. The driver indicated that he could not do that “because the gravity of his father’s deteriorating condition was still being assessed.” According to the driver, he planned to provide the paperwork the employer sought once the father’s medical team created a new treatment plan.
While the driver was in North Carolina caring for his father that month, the employer fired him based on the driver’s failure to provide “the updated medical certificate, and for failing to provide sufficient advance notice of his leave.”
The way the employer handled this driver’s situation violated the law in several ways, according to the Division on Civil Rights. For one thing, the paperwork demands the employer made of the driver exceeded the law’s requirements, the DCR found. Section 13:14-1.10 of New Jersey’s regulatory code sets out the rules for requiring a certificate from a medical provider. According to the DCR, the original certificate that the driver had already obtained and submitted to his employer was adequate to meet the regulatory requirements, not only regarding the first two weeks of leave but also for the additional leave the driver sought in December 2017. In other words, the documentation the driver had already delivered from his father’s doctor was sufficient and the employer should not have demanded a new certificate.
Giving Notice of Leave and the ‘Emergent Circumstances’ Exception to the 30-Day Rule
The regulations create a general rule that you, as an employee, must give your employer at least 30 days’ notice before taking family leave, but erects a broad exception for situations “where emergent circumstances warrant shorter notice.”
While it was true that W.S. did not give his employer 30 days’ notice of his requested absence in December 2017, the father’s deteriorating medical condition was significant enough that it “met the ‘emergent circumstances’ provision of the FLA, and was therefore not subject to the law’s normal advance-notice requirement.”
Designed to ‘Discourage and Impede’ the Employee from Taking Additional Family Leave
In W.S.’s case, the DCR also found that the employer “’failed to articulate a legitimate reason for why it required [W.S.] to immediately produce a new (medical) certification or face termination’ and held that there was ‘reasonable suspicion’ to suggest [the employer’s] unyielding stance was intended to ‘discourage and impede’ the driver from taking additional FLA time.”
Based on that Finding of Probable Cause, the DCR worked out a settlement with the bus company. Under the terms of that deal, the company agreed to put its “key employees” through anti-discrimination training and to make a cash payment to the driver.
W.S.’s case was particularly important to a specific subset of workers seeking FLA leave; namely, illustrating “the importance of the protections offered by the FLA when an employee is required to provide a medical certification.” According to the state’s Acting Attorney General, the FLA represents the state’s commitment to protecting “workers’ ability to take time off to care for a seriously ill family member… We are committed to ensuring that workers don’t lose their jobs in violation of the law just because a family member gets sick.”
The law in New Jersey recognizes the importance of caring for one’s seriously ill loved ones, and that you shouldn’t have to choose between providing that care and holding a job. If you have been punished at work for taking time to care for an ill or dying loved one, reach out to the skilled New Jersey family leave attorneys at Phillips & Associates to chart out the best legal path forward for you. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.