The Family and Medical Leave Act (FMLA) is a federal statute that affords many New Jersey workers the right to take up to 12 weeks of unpaid leave per year. A common question we receive is whether an employee’s job is genuinely protected during any FMLA leave. Can an employer reassign or demote an employee after they return from leave?
How Job Protection Works Under the FMLA
The short answer is yes, a qualified employee who takes FMLA leave is job-protected. This means that the employer is required to return the employee to the same job they held before taking leave. If that is not possible, the employer must place the employee in an equivalent (i.e., nearly identical) position.
An equivalent position must meet the following criteria:
- Same Shift or Work Schedule: The position must offer the same shift or work schedule.
- Same Work Site: The position must be at the same work site or a location that does not significantly increase the employee’s commuting time or distance.
- Same Duties and Responsibilities: The position must involve the same basic duties, responsibilities, and status.
- Same Pay: The position must offer identical pay, including any overtime or bonus opportunities, as well as any unconditional pay increases that occurred while the employee was on FMLA leave.
- Same Benefits: The position must offer identical job benefits, including health insurance, paid vacation time, sick leave, and retirement plan contributions.
Employers are prohibited from disciplining or punishing an employee for taking job-protected leave. This includes any of the following adverse actions:
- Termination, Demotion, or Reassignment: The employer cannot fire, demote, or reassign the employee to a non-equivalent position.
- Disciplinary Actions: The employer cannot issue any form of disciplinary warning, even if it is provided for in the employer’s policies.
- Promotion Consideration: The employer cannot refuse to consider an employee for promotion because they took job-protected leave.
Please note that FMLA does not require an employer to pay an employee while on leave. However, an employer must continue any group health insurance benefits during the leave, and other types of benefits must be resumed in the same manner and level as when the employee began their leave.
New Jersey’s Family Leave Act
The New Jersey Family Leave Act (NJFLA) offers public sector—and many private sector—workers the right to take up to 12 weeks of leave during a 24-month period to care for or bond with a new child, care for a family member, or provide care for a child during a state of emergency. NJFLA leave is not the same as FMLA leave. However, like its federal counterpart, NJFLA leave is also job-protected. Therefore, your employer cannot fire, demote, or retaliate against you in any way for taking NJFLA leave.
Contact a New Jersey Family and Medical Leave Act Attorney Today
Although FMLA and NJFLA are clear about protecting an employee’s job during and after leave, many New Jersey employers still try to skirt the law and punish workers who exercise their rights. You do not have to put up with such actions. Our New Jersey family and medical leave attorneys can help you take on an employer who ignores their legal responsibilities. Contact the Law Offices of Usmaan Sleemi today at 973-866-9415 to schedule a consultation.
