Types of Leave under the Family and Medical Leave Act

Employment Attorneys Serving Northern and Central New Jersey

The Family and Medical Leave Act requires only unpaid leave. However, an employee may choose to use any accrued vacation days or other specified paid time off. While this is an option for the employee if the employer has no other policy, it can require an employee taking FMLA leave to use any paid time off that has been accrued.

In New Jersey, if an employee is taking unpaid family leave, he or she may be eligible to receive income for up to 6 weeks through the New Jersey Paid Family Leave Act.

Who Is Entitled to Leave?

Both mothers and fathers have an equal right to take FMLA leave to care for a new child, whether the new child comes from birth, adoption or foster care. Leave may be taken any time within 12 months of the child’s arrival.

Women may use FMLA leave before a child is born if she is unable to work because of her pregnancy. The time she takes off for her pregnancy will reduce the amount of FMLA leave she will have to care for the child after it is born.  However, the leave taken for pregnancy will not be counted against leave taken under the New Jersey Family Leave Act (see below).

Leave may also be taken before a child’s adoption or foster care if the leave is needed to make arrangements for the arrival of the child. If spouses work for the same employer, the employer may limit the employees to a combined total of 12 weeks for the care of a new child.

Employees may also take leave to care for the serious health condition of a family member. For the purposes of the Act a family member is defined as a spouse, parent or child. A spouse must be someone that state law recognizes as being married to the employee. A parent or child may be biological, adopted, step, foster, a legal ward or guardian or someone who has taken on the day-to-day responsibilities and financial support of being a parent or child.

An employee may also take FMLA leave for his or her own medical condition. To do so, the employee must be suffering from a serious health condition that leaves him or her unable to perform the essential duties of the job. A "serious health condition" is one that involves a period of incapacity of more than three consecutive calendar days and either two or more visits to a health care provider, or one visit to a health care provider which results in continuing treatment supervised by the health care provider.

If medically necessary, an employee may take FMLA leave on an intermittent schedule. The employee must try to accommodate the employer’s scheduling needs and the employer may be able to assign the employee to a different position to accommodate the intermittent schedule.


If feasible, an employee should give an employer 30 days notice prior to taking FMLA leave. When an employee requests FMLA leave, the employer may require a document from the employee’s health care provider certifying that the employee has a serious health condition. If the employer doubts the validity of the certification, it can require the employee to go to a doctor of its choosing at the employer’s expense. If the two doctors disagree, the employer can request a third certification. The third doctor must also be at the employer’s expense but must be mutually agreeable to both the employer and the employee. The third opinion is final and binding on both parties.

The employer may require a fitness for duty certification before allowing an employee to return to work. The fitness for duty certification need not have any explanation of the employee’s condition and need only say that the employee is fit to return to duty.

Contact Green Savits, LLC online or call (973) 695-7777 today to discuss the provisions of the Family and Medical Leave Act and associated statutes in New Jersey and find out how they relate to your case.