Most FMLA-eligible women think that they are entitled to no more than twelve weeks of job-protected maternity leave. The truth is, however, that women may be eligible for as many as twenty-four weeks of leave or longer of pregnancy leave, under certain circumstances because of the interaction between the FMLA, New Jersey’s FLA, and the New Jersey Law Against Discrimination. Our FMLA page and FLA page will give you some guidance to determine if you are eligible for either leave.
Let’s start with some basics.
The federal Family Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of time off to care for their own serious health condition or the serious health condition of specified family members. 29 U.S.C. 2612(a)(1). Because the FMLA’s definition of a serious health condition includes a “physical . . . condition that involves inpatient care in a hospital” or “continuing treatment by a health care provider”, even a regular pregnancy qualifies as a serious health condition under the FMLA. 29 U.S.C. 2611(11). In fact, under New Jersey’s temporary disability law, women are presumed disabled during the 4 weeks before giving birth as well as for 6 weeks after giving birth vaginally and eight 8 weeks after delivering via c-section. Also, New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-1 (LAD), was amended on January 21, 2014, to include pregnancy as a protected characteristic. That amendment defines “pregnancy” as “pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth.” N.J.S.A. 10:5-12(s). That amendment, therefore, makes clear that the period of recovery after childbirth is a pregnancy-related medical condition under the law. So, in the end, FMLA-eligible pregnant women are entitled to a minimum of 10 weeks of maternity leave up to a maximum of 12 weeks of pregnancy leave under the FMLA solely for their own serious health condition (pregnancy and her recovery from pregnancy).
But that is not where the discussion ends given the existence of the New Jersey FLA.
In contrast to the FMLA, New Jersey’s Family Leave Act (FLA) does not provide employees with any time off to care for their own serious health conditions. Instead, the FLA provides eligible workers with up to 12 weeks of time off for the birth or adoption of a child or to care for a seriously ill relative. N.J.S.A. 34:11B-4.
Because the FLA does not provide leave for employees’ own serious health conditions, the law makes clear that employers cannot count time used by employees for their own serious health conditions under the FMLA against eligible employees’ 12-week leave entitlement under the FLA. N.J.A.C. 13:14-1.6; 29 CFR 825.701. Lest you think this is being clever, even the New Jersey Division on Civil Rights (the state agency charged with enforcing the FLA) has confirmed that even employees who use all of their allotted time under the FMLA for their own disability, may be entitled to time off under the FLA for the birth or adoption of a child or serious illness of certain close family member.
What does this mean? Well, in its simplest form, it means that eligible employees’ 12 week leave entitlement under the FLA to care for a newborn does not even begin until after the expiration of FMLA leave. See N.J.A.C. 4A:6-1.21. Put more simply, eligible employees may be entitled to a minimum of 22 weeks of maternity leave for a vaginal birth or 24 weeks of pregnancy leave for a c-section.
Maybe but not under either the FMLA or FLA. Women sometimes suffer debilitating conditions and/or symptoms during pregnancy such as severe morning sickness, hyperemesis gravidarum, dangerously high blood pressure, gestational diabetes, or preeclampsia. A pregnant woman suffering from any such condition or other pregnancy-related serious medical condition or disability may be entitled to a reasonable accommodation of her condition under the Americans With Disabilities Act (ADA) and/or the LAD. A brief leave of absence, in addition to any leave available under the FMLA, may be one type of accommodation available. As a result, women suffering from serious pregnancy-related complications and/or conditions may be entitled to more than 24 weeks of pregnancy leave.
Yes. It is worth noting that the LAD amendment discussed above requires employers to accommodate women’s “pregnancy”, which includes providing leave in the same manner as is provided to non-pregnant employees who are entitled to leave. That means that employers who deny leave to FMLA-eligible pregnant employees (or such employee who are recovering after giving birth) but do not deny leave to other employees for their own serious medical condition are engaging in pregnancy discrimination in addition to violating the FMLA and/or FLA.
We know and understand that nothing can be simultaneously more joyful and stressful than pregnancy and childbirth. We firmly believe that employers should not add to that stress by overly complicating pregnancy leave or denying pregnant women all of the maternity leave to which they are entitled. That is why we are New Jersey’s maternity leave attorneys. If you are having trouble getting all of the pregnancy leave to which you are entitled or your employer is giving you a hard time about taking leave, you should contact the pregnancy leave lawyers at Lenzo & Reis by phone at (973) 845-9922 or email by clicking here. We have proudly helped many new parents get all of the leave to which they are entitled so that they can properly heal from their pregnancy and bond with their beautiful new bundles of joy!