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Tuesday, January 30, 2018

I’m off Work for Pregnancy Illness, Can I Get More Time off for My Baby?

I frequently get asked when a pregnant woman requires time off from work because of her own serious medical condition related to her pregnancy, if she can also ask for additional leave to care for her newborn child. Both the federal statute, the Family and Medical Leave Act (FMLA) and the New Jersey's Family Leave Act (FLA) allow certain covered employees who work for certain qualified employers, i.e., employers who are covered under the statute, to take time off to care for certain family members under certain conditions.

The major difference between the statutes is that the federal statute, Family and Medical Leave Act, additionally allows an employee to take time off because of the same employee’s own serious health condition, when such serious health condition renders the employee unable to perform the function of his/her employment position. If you have a serious medical condition related to your pregnancy that renders you unable to work, you are entitled to 12 weeks of leave under the FMLA. Just because you are pregnant, does not entitle you to 12 weeks of FMLA leave; it must be because you have a serious medical condition that renders unable to perform the function of his/her employment position. While this pregnancy-related FMLA leave is commonly before one gives birth, you are entitled to FMLA leave after you give birth if you have a serious medical condition related to your pregnancy that renders you unable to work. If an employee takes 12 weeks of FMLA leave because of the employee's own pregnancy related disability or childbirth, the employee is entitled to 12 more weeks within a 24 month period under the FLA to take care of the newly born or adopted child, or care of a seriously ill member of the family

Unlike the federal statute (FMLA), New Jersey’s Family Leave Act, however, does not allow an employee to take time off because of the employee’s own serious health condition, but only to care/bond with a newborn child or newly adopted child, or to care for a seriously ill family member.

Unlike the FLA (state statute), the FMLA also allows time off for placement of a daughter or son with the employee for foster care.

The FLA allows 12 weeks in any 24 month period, whereas the FMLA allows 12 weeks during any 12 month period, but there are differences in the ways that the 12 month and 24 month periods are calculated which will be the subject of another blog.

When an Employee Requests Leave for Her Own Pregnancy-Related Medical Condition and Additional Leave to Care for a Newborn

Regulations provide that where the employee requests leave under the FMLA and further additional leave under the FLA, the leave simultaneously counts against the employee's entitlement under both laws as follows:

1. If an employee first takes FMLA leave because of his or her own disability, including a disability related to pregnancy or childbirth, the employee would be entitled to an additional 12 weeks of leave within 24 months under the FLA to care for a newborn, or to care for a seriously ill family member, because the prior disability leave was taken for the employee's own medical needs, i.e., for a purpose not covered by the FLA.

2. If an employee takes FMLA leave because of his or her own disability, including a disability related to pregnancy or childbirth, and a family member becomes seriously ill or a child is born or adopted while he or she is still on FMLA disability leave, the intervening birth, adoption or serious family illness does not convert the FMLA leave to a leave under the FLA. For as long as the employee continues to be eligible for FMLA leave based on his or her own disability, the leave does not simultaneously count against the employee's entitlement under the FLA.

New Jersey employees should combine entitlements under both the FLA and FMLA where allowed to maximize their amount of leave.

If You Need Time Off and Are Thinking of Resigning.

If you are thinking of simply resigning because your employer is not covered under the FMLA or FLA, or is your employer is covered but denies you leave, and you need time off because you have a pregnancy related serious health conditions or to care for a newborn, you should first contact an attorney experienced in employment law before you do so, to explore your legal options in the safest way for you.

What You Can Do.

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing disabled persons, employees on FMLA and FLA leave, pregnant women, and related issues. If you find yourself in a situation with inadequate job security for disabled employees, if you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in discrimination.

If you are being subjected to workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, western and northern NJ to meet with clients.


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