Managing the Complex Web of Leave Laws

Two recent federal court decisions and a new U.S. Department of Labor (DOL) "interpretation" are remind­ers that it is critical to not only analyze the right to family and medical leave sepa­rately under federal and state leave laws, but also to comply with both the letter and spirit of those laws.

In Conteh v. Francis E. Parker Memorial Home Inc., Civil Action No. 10-5670 (D.N.J. April 15, 2011), Judge Peter Sheridan held that an employer may require an employee to provide a certification of a family member's seri­ous health condition before commenc­ing leave under the New Jersey Family Leave Act (NJFLA), but not under the federal Family and Medical Leave Act (FMLA).

Last year in Schaar v. Lehigh Valley Health Services, 598 F.3d 156 (2010), the 3rd Circuit held that a combina­tion of expert and lay testimony can es­tablish that an employee was medically incapacitated for more than three days, thereby triggering FMLA protection.

On June 22, the DOL issued an ad­ministrative interpretation (FMLA Opin­ion Letter 2010-3) clarifying the definition of son or daughter under the FMLA. The new interpretation grants leave rights to in­dividuals who assume the responsibilities of a parent by providing day-to-day care or financial support for a child, regardless of whether there is a legal or biological re­lationship between the individual and the child.

Determining an employee's eligibil­ity for family and medical leave can be challenging. The DOL interpretation and accompanying statement of Secretary of Labor Hilda Solis are a strong indicator that the DOL will interpret the FMLA to favor broad coverage. The court deci­sions in Schaar and Conteh indicate that employers may well face a jury trial if they deny FMLA leave for noncompli­ance with medical certification require­ments that result in the termination of an employee. Prudent employers should carefully examine all of the facts and circumstances relating to a leave request and exercise caution when denying fam­ily or medical leave.

This article appeared in the July 4, 2011 issue of the New Jersey Law Journal.