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.

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Photo of Michael DeRose Michael DeRose

Michael P. DeRose is a shareholder at the firm and primarily focuses his practice in labor/ employment law and other aspects of civil litigation, such as contract disputes. He has litigated and tried hundreds of matters before the Superior Court of New Jersey…

Michael P. DeRose is a shareholder at the firm and primarily focuses his practice in labor/ employment law and other aspects of civil litigation, such as contract disputes. He has litigated and tried hundreds of matters before the Superior Court of New Jersey, the Office of Administrative Law and the New Jersey Public Employment Relations Commission on behalf of various labor unions and their members. Michael has extensive experience defending and fighting for members of law enforcement and other public employees facing adverse disciplinary action, such as termination or suspension from employment. He also frequently argues before New Jersey’s Appellate Division on behalf of his clients.

A large portion of his practice is also devoted to contract negotiations on behalf of union clients, representing such clients in grievance arbitration/ contract disputes, and otherwise advising union leaders on labor and employment matters.  Michael also has significant experience in the realm of interest arbitration on behalf of the firm’s law enforcement and firefighter unions. As a result of the firm’s robust labor and employment practice, Michael regularly appears before various state agencies, such as the New Jersey Civil Service Commission, the New Jersey Division of Pensions and Benefits, the State Health Benefits Commission, and NJ PERC. In addition to representing labor unions and active employees, Michael also represents retirees before the Division of Pensions in disability retirement applications, both ordinary and accidental disability retirement, in pension forfeiture actions, and in other miscellaneous pension disputes. He also counsels private business and their principals in contract and employment law, in addition to representing their interests in civil litigation. Michael has a track record of obtaining favorable outcomes for his clients and treats each everyone of them on an individual and particularized basis in accordance with their needs.

Before joining the firm in August of 2015, Michael was an associate counsel at a civil litigation firm out in Trenton, New Jersey, where he principally focused his practice around employment law and tort claims litigation. Prior to that, he served as a law clerk in the Superior Court of New Jersey for the Honorable F. Patrick McManimon, Mercer County Vicinage, from September of 2012 to August of 2013, where he attained significant experience in the realm of alternative dispute resolution having mediated well-over one-hundred cases, primarily related to commercial and residential landlord/ tenant disputes and contract/ business litigation. He earned his Juris Doctorate in 2012 after graduating from the Western Michigan University-Thomas M. Cooley School of Law. In 2007, he earned his Bachelor of the Arts in Criminal Justice and Public Administration from Kean University where he was a member of the Kean University baseball team and vice president of the Alpha Phi Sigma chapter of the National Criminal Justice Honor Society.

Michael is admitted to the New Jersey State Bar, the United States Federal Court for the District of New Jersey, and is a member of the Mercer County Bar Association.