There are various laws that protect pregnant women from workplace discrimination and that provide for pregnancy related leave from work. In fact, there are both federal and state laws that provide New Jersey employees the right to take pregnancy leave to give and recovery from giving birth. Each of these laws have different eligibility requirements that govern whether an employer must provide these rights to their employees.
The most commonly known pregnancy leave related law is the federal Family and Medical Leave Act (“FMLA”). The FMLA was first enacted and signed into law in 1993 by President Bill Clinton. The FMLA provides up to 12 weeks of leave for any 12-month period of time in order to give birth or care for a new born or adopted child. In order to be eligible for FMLA leave, the employee must be employed by the employer for one year and must have worked 1,250 hours during the one-year period preceding the leave. If the employer is in the private-sector, they must have at least 50 employees for the FMLA to apply to them. All public sector employers, regardless of size, are obligated to provide eligible employees pregnancy leave under the FMLA. In order to exercise rights under the FMLA, a pregnant employee must provide their employer notice of their intent to take the leave at least 30 days in advance of their need for the leave.
New Jersey’s Family Leave Act provides similar job protections for pregnancy leave to eligible employees as the FMLA. The New Jersey Family Leave Act allows eligible employees to take leave in order to care for a family member who is suffering from a serious health condition or to bond with a new born baby for up to 12 weeks in a 24-month time period. In order to be eligible for protected leave under the New Jersey Family Leave Act, an employee must be employed for at least one year though it does not have to be the year preceding the leave. The employee must also have worked 1,000 hours during the one-year period preceding the leave. The New Jersey Family Leave Act will run concurrently with the FMLA leave if the qualifying leave event for each leave begins at the same time.
One difference between the FMLA and New Jersey Family Leave Act is that the New Jersey Family Leave Act does not provide leave to a pregnant women on the account of her own disability. This difference can be significant in the situation where a pregnant employee first goes out on a disability-related leave prior to childbirth. In this situation, the employee’s right to take leave under the New Jersey Family Leave Act will not begin because the pregnant employee’s disability is not covered under that law. Therefore, the 12 weeks of FMLA leave will not run concurrently with the 12 weeks provided for child bonding under the New Jersey Family Leave. The New Jersey Family Leave Act regulations touch upon this scenario in N.J.A.C. 13:14-1.6(b)(10), which reads, “[u]nder this example, if an eligible employee is on disability leave while pregnant for four weeks and is on disability leave following the childbirth for an additional six weeks, those 10 weeks that the employee is on disability leave count against the employee’s FMLA entitlement, and the employee retains the full 12-week entitlement under the [New Jersey Family Leave Act] for care of the newly-born child.”
Even if a New Jersey pregnant employee is not eligible under the FMLA or New Jersey Family Leave Act, she may still have a right to pregnancy leave under the New Jersey Law Against Discrimination. The New Jersey Law Against Discrimination prohibits gender and pregnancy discrimination. It also provides for pregnancy and pregnancy-disability related leave to eligible employees. In order to be eligible for leave under the New Jersey Law Against Discrimination, the pregnant employee must be a New Jersey employee and must make a request for a pregnancy leave, which is considered a form of reasonable accommodation in some circumstances. Unlike the FMLA or the New Jersey Family Leave Act, there is no specific number of days of leave required to be provided to a pregnant woman. Instead, the New Jersey Law Against Discrimination requires that employers provide requested leave unless it can show that providing the pregnancy leave would constitute an undue burden on the employer’s business operations. In these situations, if the employer has provided disability leave to disabled employees, they must provide pregnant employees the same leave rights. In determining whether a pregnancy leave should be granted, courts will review the facts on a case-by-case basis to determine whether the request is reasonable or unreasonable in light of the burden it places on the employer’s business operations.
In 2014, the New Jersey Legislature amended the Law Against Discrimination to specifically include pregnancy as a protected class under the statute. In doing so, the Legislature made clear that reasonable accommodations must be provided to pregnant women. This includes not only a pregnancy leave of absence, but also accommodations while the pregnant employee is still working, such as bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring, modified work schedules and temporary transfers to less strenuous or hazardous work.
If you believe your rights to a pregnancy leave have been violated, it is imperative that you consult with an experienced pregnancy discrimination lawyer who can properly assess your claim. Our New Jersey employment lawyers have successfully litigated pregnancy leave claims under the FMLA, New Jersey Family Leave Act and the Law Against Discrimination and are happy to discuss the specific facts and circumstances of your potential claim.