Pregnancy/New Child Leave For New Jersey Employers: Leave Stacking

The federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA) apply to employers with fifty or more employees. Generally, the laws allow for twelve weeks of protected leave for the birth or adoption of a child. However, in some cases employees are entitled to more than twelve weeks by stacking different types of leave. Employees may also be entitled to more than twelve consecutive weeks of protected leave in cases where the employer fails to define the leave period.

Importance of Defining the Leave Period

The FMLA allows for “12 work weeks of leave during any 12-month period 3. The NJFLA allows for 12 weeks of leave in any 24-month period. Importantly, the employer may choose the method of determining the applicable 12- or 24-month period. The employer may choose either a fixed period such as a calendar year, a period measured forward from the first date of leave, or a rolling period measured backward beginning on the date of leave. However, if the employer fails to define the leave period, the option that provides the most beneficial outcome for the employee will be used. For instance, if the calendar year is used, an employee could be entitled to take 24 consecutive weeks of leave – the last 12 weeks of the calendar year and the first 12 weeks of the following year. To avoid this, it is usually advantageous for the employer to select and publicize a rolling 12-month period measured backward from the date the employee takes leave. The federal regulations explain how the look-back method works:

Under the method in paragraph (b)(4) of this section, the “rolling” 12-month period, each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009 and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA-protected.

Stacking Leave: NJFLA Leave is in Addition to other Covered Leave

Where an employee requests leave for a reason covered by both the NJFLA and the FMLA, the leave simultaneously counts against the employee’s entitlement under both laws and the employee is entitled to a total of 12 weeks of leave. However, medical or disability leave granted under other laws, but not granted under the NJFLA, does not count against the employee’s twelve weeks of NJFLA leave. For example, if an employee is on disability leave for four weeks prior to giving birth and six weeks following child birth, that leave is covered by the FMLA but not the NJFLA (the FMLA covers leave for an employee’s own serious health condition but the NJFLA does not). Therefore, following completion of the disability leave, the employee is entitled to an additional twelve weeks of NJFLA leave for the care of a newborn child.