On May 5, 2011, New Jersey’s Appellate Division ruled that employers do not have the right to force employees to complete Family Medical Leave Act (FMLA) medical certifications, or to require employees to take FMLA leaves. The FMLA is a federal law that permits qualified employees to take up to 12 weeks off per year for (1) their own serious health condition, (2) the serious health condition of their spouse, son, daughter, or parent, (3) their own pregnancy, or (4) the adoption, or placement of a child in foster care.
The case, In the Matter of Township of Parsippany-Troy Hills, involves an employee who wanted to use paid sick leave instead of taking an unpaid FMLA leave when he took a family leave to care for a sick relative. His employer, the Township of Parsippany-Troy Hills, asked him to submit a FMLA certification form from his health care provider, and threatened to suspend him after he refused to submit the form.
The Appellate Division concluded that the FMLA does not permit an employer to force an employee to submit an FMLA medical certification, and therefore it is improper for an employer to discipline an employee because he refuses to submit one. Furthermore, if the employee is entitled to take the same time off under another employment policy or a union collective bargaining agreement, then the employer must grant the employee but the employee will not be protected by the FMLA.
The Appellate Division also ruled that if an employee refuses to provide enough information for the employer to determine whether his leave qualifies under the FMLA, then the company can deny the employee’s request for an FMLA leave on that basis. That is because the employer does not have enough information to determine whether the leave qualifies under the FMLA due to the employee’s refusal to provide enough information. So, for example, if the employer asks the employee to submit an FMLA medical certification, and the employee refuses to do so, then the employer can deny the employee’s request for an FMLA leave.
In reaching those conclusions, the Appellate Division explained that companies covered by the FMLA must give employees four different forms of notice about their rights under the FMLA:
- General Notice: Employers must post general notice of the FMLA’s provisions and the procedures for filing a complaint for a violation of the FMLA in a conspicuous location, and include it in any employee handbooks or other written policies provided to employees;
- Eligibility Notice: When the employer becomes aware that an employee’s time off might qualify under the FMLA, the employer must tell the employee whether he is eligible to take an FMLA leave based on his length of employment and the size of the company;
- Rights and Responsibilities Notice: When an employee requests an FMLA-qualifying leave, or the employer has enough information to know the employee’s leave might qualify under the FMLA, the employer must tell the employee about his rights and responsibilities under the FMLA, and the potential consequence if he fails to meet those obligations; and
- Designation Notice: Once an employer has enough information to determine whether an employee’s requested leave qualifies under the FMLA, it must inform him whether it qualifies.
If you work in New Jersey or New York, and your employer has not provided you the required notice under the FMLA, or violated another one of your rights under the FMLA, then you should contact an experienced employment lawyer.