Don’t forget state leave law details like this employer did

Vicky had been working for a New Jersey company for about a year when she announced she was pregnant. She began her maternity leave under the federal Family and Medical Leave Act (FMLA) in January 2018. In April 2018, she asked for leave for bonding under the NJ Family Leave Act (FLA).

The employer denied Vicky’s additional leave, claiming that the leave under the FMLA and the NJ FLA ran concurrently.

In response, Vicky files a claim with the New Jersey Department of Law & Public Safety Division on Civil Rights, arguing that the leave under the two laws did not run concurrently in her situation, and she was entitled to the additional leave.

The Division on Civil Rights agreed with Vicky. In a consent order and decree, it pointed out that under the NJ FLA, if an employee first takes FMLA leave because of her own disability, including a disability related to pregnancy or childbirth, the employee would be entitled to an additional 12 weeks of leave under the NJ FLA to care for a newborn because the employee’s own condition was not an NJ FLA qualifying reason.

Unlike the federal FMLA, the NJ FLA does not include the employee’s own condition as a qualifying reason for leave. Therefore, any time Vicky took off for her pregnancy — her own condition — did not fall under the NJ FLA, so she was not burning any NJ FLA during that time. She was, however, using federal FMLA leave.

After Vicky recovered from her pregnancy and delivery, therefore, she still has 12 weeks of NJ FLA available to bond with her newborn.

While the decree had a high price tag, there were more details of the case, including retaliation and breastfeeding accommodations. In addition to the $195,000 civil monetary penalty, the employer was required to:

• Review its related policies and provide the Division on Civil Rights with a copy of the policies;
• Ensure that employees receive written notice that they have the right to take NJ FLA leave after FMLA leave for their own conditions;
• Train their HR employees, supervisors, managers, and owners on the NJ FLA and share with the Division on Civil Rights, training materials used, the name of the trainer, and the list of employees trained, and dates of the training; and
• For three years, provide reports to the Division on Civil Rights on pregnancy-related leave requests including the total amount of leave requested, amount of FMLA leave request, amount of FLA leave requested, amount of other leave requested, total amount of leave taken, amount of FMLA leave taken, amount of FLA taken, and amount of other leave taken.

A little training could have avoided all this.

______ v. Textiles from Europe, Inc. d/b/a VCNY Home, No. EJ08FB-66929, February 3, 2022 (the docket was redacted).