195,000 reasons to remember that state family leave laws don’t always track the FMLA

If you operate a business in a state that has a family and medical leave law, be careful when that state law does not overlap precisely with the Family and Medical Leave Act.

For example, in New Jersey, a/k/a the California of the East, an employee can get job-protected leave under the New Jersey Family Leave Act (NJFLA) by satisfying specific eligibility requirements that are more generous than the FMLA.

Employees are eligible for FMLA leave if they have worked for their employer for at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.

In NJ, employees can take NJFLA if:

• they work for a company or organization with 30 or more employees worldwide;
• have been employed by the company for at least one year; and
• have worked at least 1,000 hours in the past 12 months.

The FMLA allows eligible employees up to 12 weeks of job-protected leave in 12 months, while the NJFLA allows 12 weeks of job-protected leave during any 24 months.

Another critical difference is that eligible employees cannot take NJFLA leave for their own serious medical condition, as they can under the FMLA.

Usually, the forms of leave run concurrently. But, sometimes, employees can take up to 12 weeks of FMLA leave for their own condition, followed by 12 more weeks of NJFLA leave to care for a family member in a single 12-month period.

One employer recently learned this lesson the hard way. Here’s what happened, according to a press release from the Acting AG:

According to the complaint in this case, while the complainant was on maternity leave in early 2018, she advised [her employer] that once her disability-related leave time for her pregnancy under the federal Family and Medical Leave Act (FMLA) was concluded, she planned to start an additional 12 weeks of leave available under the New Jersey Family Leave Act to bond with and care for her newborn child.

[Her employer] responded with a letter in March 2018 advising that federal FMLA and state Family Leave Act time run concurrently. The letter directed her to return to work on June 18, 2018, and warned that if she failed to do so, the company would view it as her resignation.

That’s a problem. Here’s why:

Under New Jersey law, however, an employee who gives birth and first uses federal FMLA leave time to recover from child birth does not exhaust the additional leave time available for bonding available under New Jersey’s Family Leave Act. An employee can begin taking leave under the Family Leave Act when the employee’s leave time under federal law concludes.

Although the employer eventually permitted the employee to use the leave she was entitled to under the NJFLA, it later fired her allegedly over refusing to provide a reasonable accommodation. It ended up in a $195,000 mistake — err, settlement — which will also include policy updates, training, and annual reports to the New Jersey Division of Civil Rights.

My NJ friends can review an NJFLA fact sheet here. The rest of you in “baby-FMLA” states should be sure to understand the difference between state and federal family leave laws — unless, of course, you prefer litigation.

Because I do too, and we should talk.