In my practice, I often get questions regarding the interplay between the leave rights available under the federal Family and Medical Leave Act (“FMLA”) and the New Jersey Family Leave Law (“FLA”). The most frequent question I get is: how do you coordinate the two sets of leave in the case of childbirth and a mother’s child bonding leave. Unfortunately, most employers do this wrong, and it is important that employers understand how these separate leave laws interact so that your administration of such leaves is done in a legally correct way.
The chief difference between the FMLA and FLA is that the FMLA provides leave rights for an employee’s own serious health condition which is something that is not afforded by the FLA. This difference comes into play in childbirth/bonding leave situations.
When you combine the leave available to a new mother under both the FMLA and FLA the employee could technically be out for as long as 24 weeks. Likely because of the potential length of time that an employee can be out in these situations, employers often make the mistake of running FLA bonding leave immediately when the employee’s child is born. In such circumstances, it is often the case that the mother’s doctor will prescribe a period of recovery after childbirth for the mother. Depending upon the manner of the childbirth, the period prescribed often is different. For example, most doctors will prescribe a 6-week recovery period after a caesarian birth and 4 weeks for a regular delivery. When that occurs, significantly, the mother’s time out of work counts against that employee’s FMLA leave, not FLA leave. Why? Because there is a New Jersey FLA regulation that requires that child bonding leave cannot start until after the mother has exhausted any leave time she has under the FMLA. Most employers are not aware of this requirement, and it results in the employer’s mistaken administration of such coordinated leave periods. Many employers run the time concurrently, but this is not proper because the two leaves are not for the same qualifying reason.
Let’s consider an example that illustrates how this leave coordination is done correctly. It is not unusual that here in New Jersey an expectant mother will be taken out on a disability related leave 6 weeks before her expected delivery date. Then let’s suppose that mom delivers by way of a caesarian delivery and the doctor then prescribes 6 weeks of recovery. The temptation for many employers is to start the bonding time leave immediately upon birth, but with the mother in my example still having a doctor prescribed leave for her recovery from giving birth, those 6 weeks of leave must be exhausted before bonding leave can be run under the FLA; if of course, the new mother actually wants to take her bonding leave at that time. Another fun fact about the FLA: bonding leave can be taken anytime within 1 year of the actual birth, so employers cannot assume that bonding leave will be taken immediately after birth.
Therefore, be careful in how you as an employer run leave in these situations to ensure that you follow these unique coordination rules for leave for new parent employees. Before starting to run any leave in this situation, get information from your employee. Find out what the new parent’s intentions are about using her FLA bonding leave and determine how long of a recovery period her doctor has prescribed post-birth. With such information, you as an employer will be better equipped to meet your dual leave law responsibilities correctly
