Complete Labor Law Poster for $24.95
from www.LaborLawCenter.com, includes
State, Federal, & OSHA posting requirements

Announcement

Collapse
No announcement yet.

Disability or Termination New Jersey

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Disability or Termination New Jersey

    I have an employee who is requesting disability. She has worked under 1250 hrs in the past 12 months. She takes disability leave often but this is the first time she is below FMLA hrs criteria. Officially she has not requested any forms other than a disability claim form. If she asks for FMLA, we hava a right to deny because of her hrs wkd. We do want to terminate her but I do not how to proceed. Do I send her a disability/FMLA forms and then deny FMLA and terminated?

  • #2
    Send her the disability claim form and inform her that she does not qualify for FMLA this time. I can't see the point in sending her FMLA forms when you know she's not eligible.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      Should I allow her to go on disability and then terminate when she tries to return?

      Comment


      • #4
        Before I respond to that, how much time has she missed in the last 12 months? I'm not talking about FMLA time, I'm talking about any time.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          during the span of 4/8/07-4/8/2008 she has been out:
          6 sick days in 2007
          out from 8/28/07-1/20/2008
          out 3/10 and 3/11
          out from 3/31 and notified today she expects to be out 2 more months .

          Not to mention sick/ personal call outs that we let her use vacation time
          M225
          Junior Member
          Last edited by M225; 04-08-2008, 09:18 AM.

          Comment


          • #6
            The fact that she has been out for more than 4 and a half months in the past year would put you in the clear to terminate. If you aren't going to bring her back, I'd be inclined to simply inform her that you are sorry but you have extended all the leave you are able to and as FMLA does not apply, you are unable to approve the leave of absence. If you like you can offer to alloiw her to reapply when she is medically able, but unless you would seriously consider doing so, I wouldn't mention it.

            There is no benefit to dragging this out and causing ill will down the line when she comes to you 2 or more months from now and says she is ready to come back and you have already backfilled the position. I commend you for going above and beyond but stringing the employee along isn't going to help either or you.
            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

            Comment


            • #7
              Thanks for the advice!!

              Comment


              • #8
                I agree. The only potential issue I see is IF the nature of the illness might qualify under the ADA, but even there, you've done more than I think would be considered reasonable in allowing her to be out for almost half the year.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                Comment


                • #9
                  A question just surfaced...
                  Our Labor law posters for NJ state 1000 hrs worked to be entittled. She worked 1025

                  Comment


                  • #10
                    I was going to ask the same thing, would NJFLA apply? The 2 biggest differences I see are that the 75 mile radius goes away, and the hours drop to 1000.
                    "Pluralitas non est ponenda sine neccesitate'' - Sir William of Ockham, a.k.a. Ockham's Razor

                    Comment


                    • #11
                      As I read the NJ statute, she is entitled to time for pregnancy/maternity, childbirth, adoption, or care of a family member with a serious health condition, but NOT for her own illness unless it is pregnancy.

                      However, to be certain, I suggest you give the state a call.
                      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                      Comment


                      • #12
                        I bolded the important part, but I'm confused as the info. in the note seems contradictory to a point. It boils down to what is " a serious health condition" and what is a "disability". Call the state as cbg suggested.



                        Eligible Employees

                        Employees are eligible if they have worked for a covered employer, with at least 50 employees, for at least one year and for at least 1,000 hours over the previous 12 months.

                        Covered Employers

                        A company with at least 50 employees for 20 or more weeks either this or last year; or
                        A governmental agency; or
                        A school.
                        Reasons for Taking Leave

                        Unpaid leave must be granted for any of the following reasons:

                        to care for the employee's child after birth, or placement with the employee of a son or daughter for adoption or foster care;
                        to care for the employee's spouse, son or daughter, or parent, who has a serious health condition, or;
                        for a serious health condition that makes the employee unable to perform his or her job.
                        NJFLA defines a "serious health condition" as an illness, injury, impairment, or physical or mental condition which requires:

                        1) inpatient care in a hospital, hospice, or residential medical care facility; or

                        2) continuing medical treatment or continuing supervision by a health care provider.


                        FMLA regulations similarly define what constitutes a "serious health condition."

                        At the employee's or employer's option, certain kinds of paid leave may be substituted for unpaid leave.

                        Note: The FMLA provides time off from work due to an employee's disability, while the NJFLA does not. Therefore, it may be possible to use FMLA covered time for disability without reducing NJFLA time in connection with the birth or adoption of a child or the serious illness of a parent, child or spouse.
                        "Pluralitas non est ponenda sine neccesitate'' - Sir William of Ockham, a.k.a. Ockham's Razor

                        Comment


                        • #13
                          I've put calls out to the NJ State Department of Labor. So far, I've been transferred 4 times and have left 3 messages. I know the rule to be used is whatever favors the employee. In other words, She can't request more time under NJ which states 1000 hrs/ 24 weeks/ but for family members care only. Under FMLA she does not qualify because she is under 1250 hrs.
                          Does anyone know of a good FMLA class in NJ to attend?? I'm so confused.

                          Comment


                          • #14
                            Did any of the time she took previously count as leave under the state law? Having worked enough hours is only part of it if the 4+ months she was off were also counted as leave under state law, she would have exhausted her entitlement for the year.
                            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                            Comment


                            • #15
                              Honestly, until today, I did not realize there was a difference in the State vs. Federal. We thought it was 12 weeks..period. The real problem occurs because of our past generocity of allowing 6 months to return. Now she's going out again. Can we fire..probably. But the "powers that be" are lawsuit shy and I think she'll ride the cycle until we re-write our company policy which will then punish future non-abusers.

                              Comment

                              The LaborLawTalk.com forum is intended for informational use only and should not be relied upon and is not a substitute for legal advice. The information contained on LaborLawTalk.com are opinions and suggestions of members and is not a representation of the opinions of LaborLawTalk.com. LaborLawTalk.com does not warrant or vouch for the accuracy, completeness or usefulness of any postings or the qualifications of any person responding. Please consult a legal expert or seek the services of an attorney in your area for more accuracy on your specific situation.
                              Working...
                              X