Following the events of September 11^th and the aftermath, employers face a variety of reasons why employees may be absent from work. There are two laws, one familiar, one not so, you should review so that you foreclose the potential of future claims against your company. The two laws are: The New Jersey Family Leave Act ("FLA") and the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). This news note is a brief overview of these two laws. If you have any questions or would like us to provide on-site training, please do not hesitate to call my office.

The FLA is applicable to employers who have 50 or more employees and allows employees who have worked at least 1000 hours during the last 12 months, up to 12 weeks of leave to provide care in the birth or adoption of a child or for a serious health condition of a family member. The law does not require payment of wages during leave time. The 12 weeks may be taken in any 24 month period and may be taken intermittently in at least one week segments or pursuant to a reduced leave schedule. Employees are required to provide employers with notice of at least 30 days if the leave is foreseeable or 15 days for a serious health condition, except in emergency situations. The provision of the FLA which address health benefits has been preempted by ERISA, however if the employer provides other benefits to employees on temporary leave those on family leave must receive the same. While on leave employees may continue or begin part-time employment but may not engage in full-time employment unless it began prior to the leave. When the employee returns to work they must be restored to the same or a comparable position in terms of pay, seniority and benefits. If the employee’s position has been eliminated, reinstatement is not required.

USERRA gives a specific right to reemployment when an employee returns from military duty, such as active duty, training time, full-time National Guard duty, fitness for duty exams and funeral honors duty. All branches of the services are covered as well as Reserve and National Guard units, US Public Health Service, and any other units designated by the President. An employee must give at least 30 days notice verbally or in writing except in the case of military necessity. We include a sample "Employer Notification of Uniformed Service" form for your use. When an employee returns from military duty he or she must apply for reemployment within certain time limits. Similar to the provisions of the FLA, an employer is required to reemploy an employee on military leave. However, under USERRA, if circumstances have changed so that reemployment is impossible, unreasonable, or would impose an undue hardship on the employer or the service member's job was temporary, reemployment is not required. Again, the employer is not required to pay the employee on military leave and they may be allowed to purchase health benefits for themselves and their dependents for 18 months after beginning duty. For all other benefits, the returning military employee is to be treated as though they continued working.

The Department of Defense established a National Committee for Employer Support of the Guard and Reserve ("ESGR"). ESGR can be called at 800-336-4590 to get more information regarding USERRA and its application to employers.

If you wish to discuss the above further please call Kathleen Curley at 201-487-3800.

SAMPLE EMPLOYER NOTIFICATION OF UNIFORMED SERVICE

This is to inform you that (insert applicant or Service member’s name) must report for military training or duty on (insert date). My last period of work will be on (insert date), which will allow me sufficient time to report for military duty. I will be absent from my position of civilian employment for approximately (enter expected duration of duty as specified on your orders, and include the applicable period you have to return or submit notification of your return to work) while performing military training or duty unless extended by competent military authority or delayed by circumstances beyond my control. I otherwise expect to return to work on (insert date).

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		Signature and date

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Employer acknowledgment and date