LEGAL GUIDE
Written by attorney Richard Steven Swartz | Nov 15, 2011

New Jersey Employment Law - Interplay Between Family Medical Leave Act and the NJ Family Leave Act

The discussion herein assumes that the employee works for an employer covered by both the federal Family and Medical Leave Act ("FMLA") and the New Jersey Family Leave Act ("NJFLA"), and that the employee is an "eligible employee" under both the FMLA and the NJFLA.

There are many similarities between the FMLA and the NJFLA. For instance, both laws permit an employee to take up to 12 weeks of job-protected leave to bond with a newborn child. While leave under both laws typically run concurrently (i.e, simultaneously and not one after the other), because the NJFLA does not afford job-protected leave to employees who need leave due to their own serious health condition, an employee working in New Jersey can be entitled to up to 24 weeks of consecutive job-protected leave. How this can happen is explained in detail below. A New Jersey lawyer experienced in employment law should be consulted to determine your leave rights.

Since the NJFLA does NOT apply to one's own serious health condition, any leave taken prior to the birth could NOT count against the employee's NJFLA entitlement. Further, leave taken after the birth that is necessary to recover from the birthing process would also NOT count against the employee's NJFLA entitlement (because the NJFLA does not apply to one's own serious health condition), even if the employee is simultaneously bonding with the newborn. So it is possible for an employee working in New Jersey to take a total of 24 weeks of job protected leave (the first 12 under the FMLA and the second 12 under the NJFLA) when the employee gives birth to a child. If you have been unlawfully discriminated against or denied rights under the FMLA or the NJ FLA, you should contact an attorney experienced in New Jersey employment law. The failure of an employer to grant you job-protected leave under the FMLA and/or the NJ FLA is tantamount to unlawful discrimination and could give rise to a wrongful termination lawsuit.

The relevant section of the NJFLA regulations (N.J.A.C. § 13:14-1.6 (b)) makes this point clear in 2 examples (quoted below) that are included in the regulation:

(b) Medical or disability leave granted under other laws, but not granted under the Act, shallnot abridge an employee's right to leave or other protections granted under the Act. For example, the FMLA provides leave for an employee's own disability, but disability leaves are not covered by the Act. Some situations which may arise under this example include, but are not limited to:

  1. If an employee first takes FMLA leave because of his or her own disability, including a disability related to pregnancy or childbirth, the employee would be entitled to an additional 12 weeks of leave within 24 months under the Act to care for a seriously ill family member or newly born or adopted child,because the prior disability leave was taken for a purposenot covered by the Act. Under this example, if an eligible employee is on disability leavewhile pregnant for four weeks and is on disability leave following childbirth for an additionsix weeks, those 10 weeks that the employee is on disability leave count against theemployee's FMLA entitlement only, and the employee retains the full 12-week entitlementunder the Act for the care of the newly-born child; and

  2. If an employee takes FMLA leave because of his or her own disability, including a disability related to pregnancy or childbirth, and a family member becomes seriously ill or a child is born or adopted while he or she is still on FMLA disability leave, the intervening birth,adoption or serious family illness does not convert the FMLA leave to a leave under the Act.For as long as the employee continues to be eligible for FMLA leave based on his or her owndisability, the leave does not simultaneously count against the employee's entitlementunder the Act.

N.J.A.C. § 13:14-1.6 (b) (emphasis added).

Again, if you have been unlawfully discriminated against or denied rights under the FMLA or the NJ FLA, you should contact an attorney experienced in New Jersey employment law. The failure of an employer to grant you job-protected leave under the FMLA and/or the NJ FLA is tantamount to unlawful discrimination and could give rise to a wrongful termination lawsuit.

Additional resources provided by the author

www.nj.gov/oag/dcr/.../FamilyLeaveAct-Regulations%20.pdf

Rate this guide


Can’t find what you’re looking for?


Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer