N.J. Admin. Code § 4A:6-1.21A

Current through Register Vol. 56, No. 21, November 4, 2024

Section 4A:6-1.21A - State family leave

(a) This section describes leaves for which employees in State and local service may be eligible, pursuant to the Family Leave Act, L.1989, c.261. The Division on Civil Rights, Department of Law and Public Safety, has promulgated rules to implement and enforce the Family Leave Act. See N.J.A.C. 13:14.

(b) The following definitions are used in this section:

1. "Child" means a biological, adopted, or foster child, stepchild, legal ward, or child of a parent who is under 18 years of age or 18 years of age or older but incapable of self-care because of a mental or physical impairment.

2. "Employ" means to suffer or permit to work for compensation and includes ongoing, contractual relationships in which the employer retains substantial direct or indirect control over the employee's employment opportunities or terms and conditions of employment.

3. "Employee" means a person who is employed for at least 12 months by an employer, with respect to whom benefits are sought under the Family Leave Act, P.L. 1989 c.261, for not less than 1,000 base hours during the immediately preceding 12-month period, and includes employees in the career, senior executive and unclassified services.

4. "Employer" means a legal entity which engages the services of an employee and which from May 4, 1990 to May 3, 1991, employed 100 or more persons; from May 4, 1991 to May 3, 1993, employed 75 or more persons; and from May 4, 1993 and thereafter employed 50 or more persons.

i. In State service, "employer" refers to the State of New Jersey. In local service, "employer" refers to the political subdivision or autonomous public officer, board or body.

5. "Employment benefits" means all benefits and policies provided or made available to employees by an employer, and includes group life insurance, health insurance, disability insurance, sick leave, annual leave, pensions, or other similar benefits.

6. "Family leave" means leave from employment so that the employee may provide care made necessary by reason of:

i. The birth of a child of the employee;

ii. The placement for adoption of a child with the employee; or

iii. The serious health condition of a family member of the employee.

7. "Family member" means a child, parent, or spouse.

8. "Intermittent leave" means a non-consecutive leave comprised of intervals, each of which is at least one but less than 12 workweeks within a consecutive 12-month period.

9. "Parent" means a person who is the biological parent, adoptive parent, foster parent, step-parent, parent-in-law or legal guardian, having a "parent-child relationship" with a child as defined by law, or having sole or joint legal or physical custody, guardianship, or visitation with a child.

10. "Reduced leave" means a non-consecutive leave of up to the equivalent of 12 workweeks which is taken in increments of not less than one workday, but not more than one workweek at a time.

11. "Reduced leave schedule" means a reduced leave that is scheduled for not more than 24 consecutive weeks.

12. "Serious health condition" means an illness, injury, impairment, or physical or mental condition which requires:

i. Inpatient care in a hospital, hospice, or residential medical care facility; or

ii. Continuing medical treatment or continuing supervision by a health care provider.

(c) An employee shall be entitled to a family leave of 12 weeks in any 24-month period, unless denied under (d) below.

1. Leave taken because of the birth or placement for adoption of a child may commence at any time within a year after the date of the birth or placement for adoption.

2. An employee shall be entitled, at the option of the employee, to take family leave on a reduced leave schedule, in the case of a family member with a serious health condition.

i. The employee shall not be entitled to a reduced leave schedule for a period exceeding 24 consecutive weeks.

ii. The employee shall not be entitled to take the leave on a reduced leave schedule without an agreement between the employee and the appointing authority, if the leave is taken upon the birth or adoption of a healthy child.

iii. The employee shall make a reasonable effort to schedule reduced leave so as not to disrupt unduly the operations of the appointing authority and the employee shall provide the appointing authority with prior notice of the care, medical treatment, or continuing supervision by a health care provider necessary due to a serious health condition of a family member in a manner which is reasonable and practicable.

iv. Leave taken on a reduced leave schedule shall not result in a reduction of the total amount of family leave to which an employee is entitled.

EXAMPLE: An employee on a five day workweek schedule is entitled to a total of 12 weeks of family leave, or 60 working days. The employee takes reduced leave of two days per week for a total of 20 days. The employee remains entitled to 40 working days of family leave.

3. In the case of a family member who has a serious health condition, the leave may be taken intermittently when medically necessary, if:

i. The total time within which the leave is taken does not exceed a 12-month period for each serious health condition episode;

ii. The employee provides the appointing authority with prior notice of the leave in a manner which is reasonable and practicable; and

iii. The employee makes a reasonable effort to schedule the leave so as not to disrupt unduly the operations of the appointing authority.

iv. In the case of the birth or adoption of a healthy child, the leave may be taken intermittently if agreed to by the employee and the appointing authority.

4. See 13:14-1.1 0 concerning proof of need for family leave.

(d) Family leave may be denied to an employee if:

1. The employee is among the highest paid five percent of the employer's employees or the seven highest paid employees of the employer, whichever is greater;

2. The denial is necessary to prevent substantial and grievous economic injury to the employer's operations; and

3. The appointing authority notifies the employee of its intent to deny the leave at the time the appointing authority determines that the denial is necessary.

i. When leave has already commenced at the time of the notification pursuant to (d)3 above, the employee shall return to work within 10 working days of the date of notification.

(e) No employee shall, during any period of family leave, perform services on a full-time basis for any employer for whom the employee did not provide those services immediately prior to commencement of the leave.

(f) During a family leave, the employer shall maintain coverage under any group health insurance policy, group subscriber contract or health care plan at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously from the date the employee commenced the leave to the date the employee returns to work or the date on which the employee's coverage would have expired had the employee not been on leave, whichever is sooner.

(g) Except for health insurance as provided in (f) above, other employment benefits shall be available to employees on family leave without pay as are available to employees on all other leaves without pay.

(h) If a layoff occurs during a family leave, the employee shall retain all rights available under N.J.A.C. 4A:8 as if the employee had not taken the leave.

(i) Family leave without pay shall not be deducted from seniority for layoff purposes. See (c) above. For all other purposes, family leave without pay shall be treated the same as other leaves without pay.

(j) An employee may, at his or her option, use paid leave for family leave purposes. An employee who chooses to use paid leave (vacation, sick or administrative) must meet the requirements set forth in this subchapter for the type of leave requested.

N.J. Admin. Code § 4A:6-1.21A

New Rule, R.1990 d.387, effective 8/6/1990.
See: 22 New Jersey Register 1300(b), 22 New Jersey Register 2263(a).
Administrative Correction to (d)3i.
See: 22 New Jersey Register 2682(a).
Amended by R.1993 d.47, effective 1/19/1993.
See: 24 New Jersey Register 3590(a), 25 New Jersey Register 293(a).
Revised (a) and (b)6ii; added new (c)4 and (j).
Recodified from 4A:6-1.21 by R.1994 d.620, effective 12/19/1994.
See: 26 New Jersey Register 3511(a), 26 New Jersey Register 5002(b).