iEmployers should be aware of three recent legislative developments that are likely to impact their businesses. At the federal level, the Family and Medical Leave Act (“FMLA”) has been amended to provide special rights to family members of military personnel. Separately, New Jersey has enacted legislation imposing new obligations on employers closing a facility or initiating mass layoffs. New Jersey has also expanded the Law Against Discrimination (“LAD”) to require employers to accommodate the religious practices of their workers.
The FMLA
The FMLA, 29 U.S.C. § 2601, et seq., generally requires covered employers to provide eligible employees with up to twelve weeks of unpaid leave during a twelve month period for a serious health problem of the employee or a member of the employee’s immediate family or for the birth or adoption of a child. On January 28, 2008, President Bush signed legislation expanding the FMLA. It now permits an employee who is the “spouse, son, daughter, parent, or next of kin” of a “covered servicemember” to take up to twenty-six weeks of leave to “care for” the servicemember. A “covered servicemember” means a member of the Armed Forces “who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”
As amended, the FMLA also provides that an employee may take up to twelve weeks of leave “[b]ecause of any qualifying exigency …arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of” a military operation. This provision will not take effect until the Secretary of Labor issues regulations defining the term “qualifying exigency.”
The FMLA imposes notice requirements on employees when their need for leave under the new provisions is foreseeable. Employers should amend their leave policies consistent with these changes to the FMLA.
The LAD
The LAD, N.J.S.A. 10:5-1, et seq., prohibits discrimination in employment on the basis of such protected characteristics as race, religion, disability, age, and gender. On January 13, 2008, Governor Corzine signed legislation amending the law to require employers to accommodate the religious practices of their employees.
The amendment, which took effect immediately, bars an employer from requiring an individual to violate or forego a “sincerely held religious practice or religious observance” as a term or condition of hire, retention, promotion, advancement, or transfer. Among the religious practices or observances that the law covers is “the observance of any particular day or days or any portion thereof as a Sabbath or other holy day in accordance with the requirements of the religion or religious belief.”
The law includes an exception where, “after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” In this context, “undue hardship” means “an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement.” The factors an employer should consider is determining whether an accommodation would constitute an undue hardship include: (1) the monetary cost of lost productivity and of transferring or hiring other workers; and (2) the number of employees needing the accommodation. In addition, “an accommodation shall be considered to constitute an undue hardship if it will result in the inability of an employee to perform the essential functions of the position in which he or she is employed.” The law excuses an employer from any obligation to provide a worker with extra wages or benefits for working particular hours if the employee was assigned those hours as a religious accommodation.
An employee must make up for work time missed pursuant to the new legislation “by an equivalent amount of time and work at some other mutually convenient time.” In the alternative, the time may be charged against other paid leave, other than sick leave. If the time is not made up or charged against other paid leave, the employer may treat it as unpaid leave.
Employers should revise their policies in light of these changes to the LAD.
