New Jersey Employment Lawyer Blog
A recent District of New Jersey opinion emphasizes the importance of recertifying an intermittent Family & Medical Leave Act (“FMLA”) leave when your employer asks you to do so. An intermittent leave is when you seek permission to take time off, as needed in the future.
Matthew Calio is a corrections officer for the Camden County Board of Chosen Freeholders, which does business as the Camden County Department of Corrections (“DOC”). Mr. Calio alleges the DOC violated the FMLA and the New Jersey Family Leave Act (“NJFLA”) when it suspended him after he took time off to help care for his mother who suffers from dementia.
On several previous occasions, Mr. Calio asked the DOC for an intermittent family leave so he could help care for his mother, and the DOC granted his request. His most recent request was in 2018, which he sought due to his mother’s intermittent flare ups that caused her to be incapacitated once per month for up to five days. The DOC granted Mr. Calio permission to take up to one week off every four weeks between December 12, 2018 and June 12, 2019.
Mr. Calio took off December 15, 2018 as part of this intermittent FMLA leave without any issue. However, when he subsequently took off January 6 and January 14, 2019, his supervisor, Lt. Charyetta Hinson, recommended disciplining him. Lt. Hinson made that recommendation because Mr. Calio had exceeded his FMLA leave since he was trying to take additional time off within 30 days after December 15, 2018, but he only had permission to take off one week per month. The DOC suspended Mr. Calio for taking unapproved time off.
The DOC claims that, after Mr. Calio’s January 6, 2019 absence, it asked him to provide new documentation from his mother’s doctor so it could adjust his family leave. However, Mr. Calio claims the DOC did not ask him to do so until after it suspended him.
Mr. Calio filed a lawsuit in which he alleges the DOC violated the FMLA and the NJFLA. In the meantime, the DOC decided not to suspend Mr. Calio, but instead treated his time off as sick days.
Mr. Calio eventually filed a motion for summary judgment, contending the undisputed facts establish that the DOC violated the law. The DOC filed a cross-motion, instead arguing that the undisputed facts prove it did not violate the law.
In its August 6, 2021 opinion in Calio v. Camden County Board of Chosen Freeholders, the District Court explained that, ordinarily, an employer can require an employee to provide a medical certification for an intermittent FMLA leave once every six months. In addition, an employer can require the employee to submit a new certification if there is a significant change in circumstances, such as a change to the frequency of the absences. When an employer requests recertification, the employee must provide it within 15 days. Otherwise, the employer can deny the employee continued protection of the FMLA leave until he provides a recertification.
The Court concluded that if the DOC asked Mr. Calio to recertify his leave before it suspended him, but he failed to do so within 15 days, then his absences in January 2019 were not protected by the FMLA. But, if the DOC did not ask Mr. Calio to recertify his FMLA leave until after it suspended him, then his absences were protected by the FMLA, and the DOC’s decision to discipline him for taking that time off would violate the FMLA. Accordingly, the Court denied both Mr. Calio’s and the DOC’s motions for summary judgment.