Family Leave Rules

• 13:14-1.2. Terms defined.
• 13:14-1.6. Disability leave.

Family Leave Law

• 34:11B-3. Definitions As used in this act:
• 34:11B-4. Duration, frequency of family leave; payment by employer; certification; denial of leave.
• 34:11B-5. Reduced leave schedule.
• 34:11B-6. Employees to be informed of their rights and obligations.
• 34:11B-7. Return from leave; conditions.
• 34:11B-8. Continuation of health benefits during leave.
• 34:11B-9. Withholding of rights, benefits; discharge of employee, unlawful
• 34:11B-13. Family leave in addition to temporary disability benefits.

The New Jersey Administrative Code allows the following leave for State employees

• 4A:6-1.24. State employees; School volunteer leave.

Breastfeeding

• 26:4B-4. Right to breast feed in public

New Jersey Family and Medical Leave Law

New Jersey family and medical leave law is located in the following sections of the New Jersey Code.

13:14-1.2. Terms defined.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Act" means the "Family Leave Act," N.J.S.A. 34:11B-1 et seq., unless the context indicates otherwise.

"Base hours" means the hours of work for which an employee receives compensation. Base hours shall include overtime hours for which the employee is paid additional or overtime compensation, and hours for which an employee receives workers' compensation benefits. At the option of the employer, base hours may include hours for which the employee re

ceives other types of compensation, such as paid administrative, personal leave, vacation or sick leave. "Base salary" as used in section 4h(1) of the Act means the salary paid to an employee, excluding overtime, bonuses, etc., but not excluding salary withheld for State, Federal, and local taxes, FICA, employee contributions to any pension, health and/or insurance plans or programs, etc.

"Care" means, but is not limited to, physical care, emotional support, visitation, assistance in treatment, transportation, assistance with essential daily living matters and personal attendant services.

"Child", for the purpose of determining whether an employee is eligible for family leave because of such employee's parental status, means a child as defined in the Act to whom such employee is a biological parent, adoptive parent, foster parent, step-parent, or legal guardian, or has a "parent-child relationship" with a child as defined by law, or has sole or joint legal or physical custody, care, guardianship or visitation with a child.

"Consecutive leave" means leave that is taken without interruption based upon an employee's regular work schedule, and does not include breaks in employment in which an employee is not regularly scheduled to work. (For example, when an employee is normally scheduled to work from September through June and is not scheduled to work during July and August, a leave taken continuously during May, June and September shall be considered a consecutive leave.)

"Disability leave" means any period of leave for which the employee is disabled (that is, unable to perform his or her work) including, but not limited to, any period of time during which an employee is collecting disability benefits.

"Disrupt unduly the operations of the employer", as used in sections 4a(3) and 5b of the Act, means an intermittent or reduced leave schedule that, if implemented, would cause the employer measurable harm, economic or otherwise, significantly greater than any measurable harm which would befall the employer if the same employee was granted a consecutive leave. The burden of proof in these instances rests with the employer and will be determined by the Division on a case by case basis.

"Eligible employee" means any individual employed by the same employer in the State of New Jersey for 12 months or more and has worked 1,000 or more base hours during the preceding 12 month period. An employee is considered to be employed in the State of New Jersey if: 1. Such employee works in New Jersey; or 2. Such employee routinely performs some work in New Jersey and the employee's base of operations or the place from which such work is directed and controlled is in New Jersey.

"Employer" means an employer as defined in the Act which employs 50 or more employees, whether employed in New Jersey or not, for each working day during each of 20 or more calendar workweeks in the then current or immediately preceding calendar year.

"Health care provider" means any person licensed under Federal, state, or local law, or the laws of a foreign nation, to provide health care services; or any other person who has been authorized to provide health care by a licensed health care provider.

"Health insurance policy" means all health benefits provided by an employer to an employee. Health benefits includes the opportunity provided by an employer to participate in a group health plan. "Intermittent leave" means a non-consecutive leave comprised of intervals each of which is at least one but less than 12 workweeks within a consecutive 12 month period.

"Reduced leave" means a non-consecutive leave of up to the equivalent of 12 workweeks which is taken in increments of not less than one workday, unless otherwise agreed to by the employee and employer, but less than one workweek at a time.

"Reduced leave schedule" means a reduced leave that is scheduled for not more than 24 consecutive weeks.

"Serious health condition" means an illness, injury, impairment, or physical or mental condition which requires:

1. Inpatient care in a hospital, hospice, or residential medical care facility; or

2. Continuing medical treatment or continuing supervision by a health care provider.

"Spouse" means a person to whom an employee is lawfully married as defined by New Jersey law.

"Substantial and grievous economic injury" as used in section 4h(2) of the Act means economic harm that will befall an employer which is of such a magnitude that it would substantially and adversely affect the employer's operations, considerably beyond the costs which are associated with replacing an employee who has requested family leave.

"Workweek" means the number of days that an employee normally works each calendar week, irrespective of the number of hours worked each day. (For purposes of a reduced leave, an employee who normally works five days each calendar week is entitled to a maximum of 60 days of family leave. An employee who normally works four days each calendar week is entitled to a maximum of 48 days of family leave).

13:14-1.6. Disability leave.

(a) Where an employee requests leave for a reason covered by both the Act and another law, the leave simultaneously counts against the employee's entitlement under both laws. For example, the Federal Family and Medical Leave Act (FMLA), 29 U.S.C. 2601 et seq., provides leave to care for a seriously ill spouse and the Act also provides leave for that reason. Under this example, since the leave is taken for a purpose covered by both the FMLA and the Act, the leave simultaneously counts against the employee's entitlement under both laws.

(b) Medical or disability leave granted under other laws, but not granted under the Act, shall not abridge an employee's right to leave or other protections granted under the Act. For example, the FMLA provides leave for an employee's own disability, but disability leaves are not covered by the Act. Some situations which may arise under this example include, but are not limited to:

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 Act to care for a seriously ill family member or newly born or adopted child, because the prior disability leave was taken for a purpose not covered by the Act;

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 Act. 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 Act.

(c) An employee retains all rights under the Temporary Disability Benefits Law, N.J.S.A. 43:21-25 et seq., when taking leave under the Act, and an employee's receipt of disability benefits or other compensation does not limit or impair the employee's right to take leave to care for a covered family member under the Act while receiving such benefits. For example, if an employee is receiving temporary disability benefits based on a post-partum medical condition, but has exhausted her Federal FMLA leave, she is entitled to begin her twelve weeks of leave under the Act to care for her newly born child, even though she is still disabled as defined by the Temporary Disability Benefits Law and is receiving compensation under that law.

34:11B-3. Definitions As used in this act:

a. "Child" means a biological, adopted, or foster child, stepchild, legal ward, or child of a parent who is

(1) under 18 years of age; or

(2) 18 years of age or older but incapable of self-care because of a mental or physical impairment.

b. "Director" means the Director of the Division on Civil Rights.

c. "Division" means the Division on Civil Rights in the Department of Law and Public Safety.

d. "Employ" means to suffer or permit to work for compensation, and includes ongoing, contractual relationships in which the employer retains substantial direct or indirect control over the employee's employment opportunities or terms and conditions of employment.

e. "Employee" means a person who is employed for at least 12 months by an employer, with respect to whom benefits are sought under this act, for not less than 1,000 base hours during the immediately preceding 12-month period.

f. "Employer" means a person or corporation, partnership, individual proprietorship, joint venture, firm or company or other similar legal entity which engages the services of an employee and which:

(1) With respect to the period of time from the effective date of this act until the 365th day following the effective date of this act, employs 100 or more employees for each working day during each of 20 or more calendar workweeks in the then current or immediately preceding calendar year;

(2) With respect to the period of time from the 366th day following the effective date of this act until the 1,095th day following the effective date of this act, employs 75 or more employees for each working day during each of 20 or more calendar workweeks in the then current or immediately preceding calendar year; and

(3) With respect to any time after the 1,095th day following the effective date of this act, employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the then current or immediately preceding calendar year. "Employer" includes the State, any political subdivision thereof, and all public offices, agencies, boards or bodies.

g. "Employment benefits" means all benefits and policies provided or made available to employees by an employer, and includes group life insurance, health insurance, disability insurance, sick leave, annual leave, pensions, or other similar benefits.

h. "Parent" means a person who is the biological parent, adoptive parent, foster parent, step-parent, parent-in-law or legal guardian, having a "parent-child relationship" with a child as defined by law, or having sole or joint legal or physical custody, care, guardianship, or visitation with a child.

i. "Family leave" means leave from employment so that the employee may provide care made necessary by reason of:

(1) the birth of a child of the employee;

(2) the placement of a child with the employee in connection with adoption of such child by the employee; or

(3) the serious health condition of a family member of the employee.

j. "Family member" means a child, parent, or spouse.

k. "Reduced leave schedule" means leave scheduled for fewer than an employee's usual number of hours worked per workweek but not for fewer than an employee's usual number of hours worked per workday, unless agreed to by the employee and the employer.

l. "Serious health condition" means an illness, injury, impairment, or physical or mental condition which requires:

(1) inpatient care in a hospital, hospice, or residential medical care facility; or

(2) continuing medical treatment or continuing supervision by a health care provider.

34:11B-4. Duration, frequency of family leave; payment by employer; certification; denial of leave.

An employee of an employer in this State subject to the provisions of this act shall be entitled to a family leave of 12 weeks in any 24-month period upon advance notice to the employer, unless the employer denies family leave to the employee pursuant to subsection h. of this section.
a. In the case of a family member who has a serious health condition, the leave may be taken intermittently when medically necessary, if:

(1) The total time within which the leave is taken does not exceed a 12-month period for each serious health condition episode;

(2) The employee provides the employer with prior notice of the leave in a manner which is reasonable and practicable; and

(3) The employee makes a reasonable effort to schedule the leave so as not to disrupt unduly the operations of the employer.

b. In the case of the birth or adoption of a healthy child, the leave may be taken intermittently if agreed to by the employer and the employee.

c. Leave taken because of the birth or placement for adoption of a child may commence at any time within a year after the date of the birth or placement for adoption.

d. Family leave required by this act may be paid, unpaid, or a combination of paid and unpaid leave. If an employer provides paid family leave for fewer than 12 workweeks, the additional weeks of leave added to attain the 12-workweek total required by this act may be unpaid.

e. An employer may require that any period of family leave be supported by certification issued by a duly licensed health care provider or any other health care provider determined by the director to be capable of providing adequate certification.

(1) Where the certification is for the serious health condition of a family member of the employee, the certification shall be sufficient if it states:

(a) the date on which the serious health condition commenced;

(b) the probable duration of the condition; and

(c) the medical facts within the provider's knowledge regarding the condition;

(2) Where the certification is for the birth or placement of the child, the certification need only state the date of birth or date of placement, whichever is appropriate. In any case in which the employer has reason to doubt the validity of the certification provided pursuant to paragraph (1) of this subsection, the employer may require, at its own expense, that an employee obtain an opinion regarding the serious health condition from a second health care provider designated or approved, but not employed on a regular basis, by the employer. If the second opinion differs from the certification provided pursuant to paragraph (1) of this subsection, the employer may require, at its own expense, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employer and the employee concerning the serious health condition. The opinion of the third health care provider shall be considered to be final and shall be binding on the employer and the employee.

f. In any case in which the necessity for leave under this act is foreseeable, based upon an expected birth or placement of the child for adoption, the employee shall provide the employer with prior notice of the expected birth or placement of the child for adoption in a manner which is reasonable and practicable.
g. No employee shall, during any period of leave taken pursuant to this section, perform services on a full-time basis for any person for whom the employee did not provide those services immediately prior to commencement of the leave.
h. An employer may deny family leave to the employee if:

(1) The employee is a salaried employee who is among the highest paid 5% of the employer's employees or the seven highest paid employees of the employer, whichever is greater;
(2) The denial is necessary to prevent substantial and grievous economic injury to the employer's operations; and
(3) The employer notifies the employee of its intent to deny the leave at the time the employer determines that the denial is necessary.

i. In any case in which the leave has already commenced at the time of the notification pursuant to paragraph (3) of subsection h. of this section, the employee shall return to work within 10 working days of the date of notification.

34:11B-5. Reduced leave schedule
An employee shall be entitled, at the option of the employee, to take this leave on a reduced leave schedule, except that:

a. The employee shall not be entitled to a reduced leave schedule for a period exceeding 24 consecutive weeks; and
b. The employee shall not be entitled to take the leave on a reduced leave schedule without an agreement between the employer and employee, if the leave is taken upon the birth or adoption of a healthy child.

The employee shall make a reasonable effort to schedule reduced leave so as not to disrupt unduly the operations of the employer and the employee shall provide the employer with prior notice of the care, medical treatment, or continuing supervision by a health care provider necessary due to a serious health condition of a family member, in a manner which is reasonable and practicable. Leave taken on a reduced leave schedule shall not result in a reduction of the total amount of leave to which an employee is entitled.

34:11B-6. Employees to be informed of their rights and obligations.
An employer shall display conspicuous notice of its employees' rights and obligations pursuant to the provisions of this act, and use other appropriate means to keep its employees so informed.

34:11B-7. Return from leave; conditions.
An employee who exercises the right to family leave under section 4 of this act shall, upon the expiration of the leave, be entitled to be restored by the employer to the position held by the employee when the leave commenced or to an equivalent position of like seniority, status, employment benefits, pay, and other terms and conditions of employment. If during a leave provided by this act, the employer experiences a reduction in force or layoff and the employee would have lost his position had the employee not been on leave, as a result of the reduction in force or pursuant to the good faith operation of a bona fide layoff and recall system including a system under a collective bargaining agreement where applicable, the employee shall not be entitled to reinstatement to the former or an equivalent position. The employee shall retain all rights under any applicable layoff and recall system, including a system under a collective bargaining agreement, as if the employee had not taken the leave.

34:11B-8. Continuation of health benefits during leave.
a. During a leave taken under section 4 of this act, the employer shall maintain coverage under any group health insurance policy, group subscriber contract or health care plan at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously from the date the employee commenced the leave to the date the employee returns to work pursuant to section 7 of this act or the date on which the employee's coverage would have expired had the employee not been on leave, whichever is sooner.
b. During a leave taken under section 4 of this act, the employer shall provide any employment benefits that are not required to be maintained pursuant to subsection a. of this section pursuant to the employer's policy with regard to employment benefits for employees on temporary leave from employment.

34:11B-9. Withholding of rights, benefits; discharge of employee, unlawful
a. It shall be unlawful for any employer to interfere with, restrain or deny the exercise of, or the attempt to exercise, the rights provided under this act or to withhold the benefits provided for under this act.
b. It shall be unlawful for an employer to discharge or discriminate against an individual for opposing a practice made unlawful by this act.
c. It shall be unlawful for a person to discharge or discriminate against an individual because the individual:

(1) has filed a charge, or has instituted or caused to be instituted a proceeding, under or related to this act;
(2) has given or is about to give information in connection with an inquiry or proceeding relating to a right provided under this act; or
(3) has testified or is about to testify in an inquiry or proceeding relating to a right provided under this act.

34:11B-10. Penalty for violation by employer.
The penalty for an employer violating this act is, in addition to other relief or affirmative action provided by law, not more than $2,000.00 for the first offense and not more than $5,000.00 for the second and each subsequent offense, to be recovered in a summary civil action in the name of the Attorney General and collected pursuant to "the penalty enforcement law," N.J.S.2A:58-1 et seq.

34:11B-11. Suits, complaints, permitted; punitive damages.
Any person may initiate suit in Superior Court or file a complaint with the division on either an individual or class basis. In addition to the remedies provided in section 16 of P.L.1945, c.169 (C.10:5-17), the aggrieved party may be awarded punitive damages in an amount not greater than $10,000.00 except that in the case of a class action or a director's complaint the total amount of punitive damages shall not exceed $500,000.00 or 1% of the net worth of the defendant, whichever is less. In determining the amount of punitive damages, the court or director shall consider, among other relevant factors, the amount of compensatory damages awarded, the amount of civil penalty to be paid by the employer, the frequency and persistence of the violation of this act by the employer, the resources of the employer, the number of persons adversely affected by the violation, and the extent to which the employer's failure to comply with this act was intentional.

34:11B-12. Award of attorneys' fees.
In an action or complaint brought under this act, the prevailing party may be awarded reasonable attorneys' fees as part of the cost, provided however, that no attorneys' fees shall be awarded to the employer unless there is a determination that the action was brought in bad faith.

34:11B-13.Family leave in addition to temporary disability benefits.
Family leave granted under this act is in addition to, and shall not abridge nor conflict with, any rights pursuant to the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et seq.).

34:11B-14. Benefits provided by collective bargaining agreement; reduction prohibited.
No provision of this act shall be deemed to justify an employer in reducing employment benefits provided by the employer or required by a collective bargaining agreement which are in excess of those required by this act. Nor shall any provision of this act, or any regulations promulgated to implement or enforce this act, be construed to prohibit the negotiation and provision through collective bargaining agreements of leave policies or benefit programs which provide benefits in excess of those required by this act. This provision shall apply irrespective of the date that a collective bargaining agreement takes effect.

The New Jersey Administrative Code allows the following leave for State employees

4A:6-1.24. State employees; School volunteer leave.

(a) State employees in the career, senior executive or unclassified service shall be granted leave with pay, up to a maximum of 20 hours per calendar year, to volunteer in an academically beneficial school activity.

1. In local service, an appointing authority may establish a school volunteer leave program.

(b) An academically beneficial school activity, for purposes of this section, includes, but is not limited to, helping a teacher in the classroom, as well as the following activities held at the schools: reading to children; tutoring; assisting students with homework; mentoring; serving as a guest speaker; advising students on careers; or assisting with extra curricular or coaching activities.

1. School volunteer leave is not intended to be used for such activities as parent teacher conferences back-to-school nights, field trips or attending class performances.

2. Activities may take place at any New Jersey public, private or parochial school, through grade 12.

3. The volunteer program shall be approved by the local board of education or, in the case of a private or parochial school, the appropriate administrative authority for that school.

4. The State employee need not be a parent of a child in the school in which the volunteer activity is being performed. However, employee participation in the volunteer program shall be subject to approval by the school principal or designee.

(c) State appointing authorities shall establish procedures for school volunteer leave, subject to the following:

1. Leave shall be requested in advance, and shall be granted consistent with the operational needs of the appointing authority.

2. Employee participation shall be verified in writing by the school principal or designee.

3. Paid leave under this section shall not be granted for time spent travelling to and from the school. Vacation leave, administrative leave, and leave without pay may be used in conjunction with school volunteer leave for travelling time.

Breastfeeding

26:4B-4. Right to breast feed in public
2. Notwithstanding any provision of law to the contrary, a mother shall be entitled to breast feed her baby in any location of a place of public accommodation, resort or amusement wherein the mother is otherwise permitted.