Proposed Rule Changes Would Bring NJ Family Leave Act More in Line with Federal FMLA

November 14, 2006

The New Jersey Division on Civil Rights has published proposed amendments to the regulations governing the New Jersey Family Leave Act. The DCR, the agency charged with enforcing the NJFLA, explained the proposed rule changes announced on November 6, 2006, are designed to make the NJFLA rules more consistent with the requirements of the federal Family and Medical Leave Act and to make it easier for employers to comply with both leave laws.

The NJFLA applies to employers who have 50 or more employees, regardless of whether the employees are all located in New Jersey. For example, an employer with five employees in New Jersey and 47 employees in Connecticut must provide NJFLA leave to its New Jersey employees because it has more than 50 employees. Under the NJFLA, employees who have been employed for at least 12 months and who have worked at least 1,000 hours during the 12-month period preceding the leave are entitled to a maximum of 12 weeks of family leave during any 24-month period. The NJFLA allows eligible employees to take a leave of absence to care for a child, spouse or parent (including a parent-in-law) with a serious health condition, or to provide care due to the birth or adoption of a child. Unlike the federal FMLA, the NJFLA does not provide leave to employees due to their own serious health condition. Employees returning from a leave of absence under the NJFLA are entitled to be restored to the position they held prior to the leave of absence, or to an equivalent position of like pay, seniority, status and other terms and conditions of employment.

Conversely, the federal FMLA applies to employers who have 50 or more employees within a 75-mile radius. Under the FMLA, employees who have been employed for at least 12 months and who have worked at least 1,250 hours during the 12-month period preceding the leave are eligible to take up to 12 weeks of unpaid leave during any 12-month period. The FMLA entitles employees to take a leave of absence: (i) to care for a newborn child or for the placement of a child with the employee for adoption or foster care; (ii) to care for a family member with a serious health condition; (iii) or because of the employee's own serious health condition. Similar to the NJFLA, employees returning from a leave of absence under the FMLA are entitled to be restored to the position they held prior to the leave of absence, or to an equivalent position of like pay, seniority, status and other terms and conditions of employment.

The following is a summary of the key proposed changes:

• Amending the definition of "base hours," which are used to determine an employee's eligibility for NJFLA leave, to include hours an employee would have worked but for an absence due to military service.
• Clarifying that government entities are employers covered by the NJFLA regardless of whether they meet the 50-employee requirement applicable to private businesses.
• Allowing employers to determine the manner in which they will calculate the 24-month period during which leave is available. Similar to the FMLA, the proposed amendment would permit employers to use either: (i) a calendar year; (ii) a fixed leave year (e.g., a fiscal year); (iii) or a rolling interval measured backwards from the date an employee begins a leave of absence.
• Expanding the amount of notice an employee must give prior to commencing a foreseeable leave of absence. The proposed rule expands the notice period from 15 days to 30 days prior to the leave of absence. The proposed rule, however, still exempts employees from the 30-day notice requirement where emergent circumstances warrant a shorter notice.
• Allowing employers to transfer employees who request leave on an intermittent or reduced leave basis to an alternative position with a equivalent pay and benefits. An employer, however, may not transfer an employee to an alternative position in order to discourage the employee from taking leave or to otherwise work a hardship on the employee.
• Clarifying that if an employee first takes FMLA leave because of his or her own disability, including disability related to pregnancy or child birth, the employee still would be entitled to an additional 12 weeks of leave within a 24-month period to care for a seriously ill family member or newly born or adopted child. For example, the proposed rules state that if an eligible employee is on disability leave while pregnant for four weeks and remains on disability leave following child birth for an additional six weeks, those 10 weeks that the employee is on disability leave only count against the employee's FMLA leave allotment, and the employee retains the full 12-week entitlement under the NJFLA for the care of a newly born child.
• Requiring employers covered under the NJFLA to display the official Family Leave Act poster and to disseminate written guidance to employees regarding their rights and obligations under the act.

The Division on Civil Rights will be accepting comments regarding the proposed rules until January 5, 2007.

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