Both the federal Family Medical Leave Act (FMLA) and New Jersey’s Family Leave Act (FLA) provide that an employer may adopt a policy requiring an employee to exhaust accrued paid leave during periods of FMLA/ FLA leave. In these situations, an employee would have to simultaneously utilize paid leave during periods of FMLA/ FLA leave before they are able to take the unpaid FMLA/ FLA leave. At first glance, this might seem beneficial, and in many cases it is. However, it’s always better if the employee has the option to take such leave on a paid or an unpaid basis. Why would an employee want to take federal or state family/ medical leave in an unpaid capacity rather than a paid one? Well, because that employee may be able to avail him or herself to a monetary benefit through New Jersey Family Leave Insurance (FLI) (to bond with a newborn, newly adopted, newly placed foster child, or to provide care for a seriously ill or injured loved one) or New Jersey Temporary Disability Insurance (TDI) (for New Jersey workers who have to stop working due to a physical or mental health condition or other disability unrelated to their work).

Both FLI and TDI are only available to employees that pay into those programs. The programs, by definition, provide monetary benefits to eligible employees on leaves of absences that generally qualify as FMLA and/or FLA leave. However, according to the governing statutes and regulations, an employee is unable to receive FLI/ TDI benefits during FMLA/ FLA leave if they are utilizing accrued paid leave during such an absence. Because the FMLA and FLA leave afforded to employees is limited (12 weeks in a 12 month period and 12 weeks in a 24 month period, respectively), when a “concurrent exhaustion” or “stacking” requirement is in place, the employee will not be able to obtain FLI or TDI so long as they have accrued paid leave to use and won’t be able to collect said benefits (FLI/ TDI) until they have exhausted their accrued paid leave time. As such, a concurrent exhaustion requirement will limit the employee’s eligibility for FLI or TDI benefits during periods of FMLA/ FLA leave.

Conversely, when an employee is authorized to take unpaid FMLA/ FLA leave without having to “concurrently exhaust” accrued paid leave, the employee can avail him/ herself to FLI/ TDI during such a period while preserving their accrued paid leave for later usage. This is referred to as the “consecutive use” of FMLA/ FLA and accrued paid leave.

Thus, while an employer “may” adopt a policy requiring an employee to exhaust accrued paid leave during periods of FMLA/ FLA leave, both the FMLA and FLA statutes provide that nothing within either law is intended to diminish the benefits provided by an employer through a collective negotiations agreement. In other words, if your union contract expressly permits the “consecutive use” of unpaid FMLA/ FLA leave with paid accrued leave or there is otherwise an established past practice in place whereby your employer has permitted the consecutive use of such time, then the subsequent unilateral establishment of a policy requiring the “concurrent exhaustion” of FMLA/ FLA leave with paid leave by an employer, without negotiations, is likely grounds for an unfair practice charge and/ or grievance, depending upon the particular facts. In such situations, both the courts and New Jersey’s Public Employment Relations Commission (PERC) have held that the employer may not take such unilateral action as the concurrent versus consecutive use of FMLA/ FLA and paid leave is mandatorily negotiable. In other words, when your union contract allows for the “consecutive” use of such time or there is an established past practice in place that permits it, the employer is not permitted to simply establish a “concurrent exhaustion” policy and must instead negotiate the topic with the union.

In conclusion, if your employer has unilaterally adopted a “concurrent exhaustion” policy that contravenes past practice and/or explicit language in your union contract, it is important that prompt action is taken by the union to challenge the policy. Failure to take prompt action may result in a waiver by the union of their members’ ability to take unpaid FMLA/ FLA leave and accrued paid leave on a consecutive basis.