In the everchanging legal landscape, school leaders are tasked not only with being experts in the area of educating children but also in the areas of labor and employment. As public employers, school districts must also manage employees and their needs. In many cases, this requires school administrators to have a distinct familiarity with the laws impacting an employee’s ability to take a leave of absence.
Most commonly, administrators are presented with an employee who informs them of the employee’s intent to take a maternity leave of absence. In many cases, maternity leaves of absence are addressed through collective bargaining. However, regardless of what the terms of your collective bargaining agreement provide, it is imperative that school district administrators familiarize themselves with the applicable laws and regulations regarding leaves of absence, as those laws and regulations control even in the absence of applicable contract language.
This article serves to provide school administrators with the basics of those laws and their interplay. It is not intended to serve as an exhaustive review of all applicable circumstances. Instead, school district administrators are strongly urged to contact their legal counsel to review particular and specific inquiries or requests.
I. APPLICABLE STATUTORY PROVISIONS
When an employee seeks to utilize a maternity leave of absence, several different statutes may apply. The following is a brief summary of each statute, their eligibility requirements, and when they apply.
A. Federal Family Medical Leave Act (“FMLA”)
In 1993, the federal government enacted FMLA requiring covered employers to provide employees with job-protected, unpaid leave for certain medical and family care reasons. Specifically, eligible employees are granted a maximum of twelve (12) weeks of unpaid, job-protected leave in a 12 month period to care for (1) the employee’s own serious health condition; (2) a family member with a serious health condition; or (3) a newborn child or newly adopted child within one year of birth or placement. While other eligibility criteria exist, the most notable ones require employees to have worked: (1) at least 1,250 hours during the 12 months prior to the start of the leave; and (2) for the employer for at least 12 months. The 1,250 hour requirement includes only those hours “actually worked”, and leave periods are not included. Thus, in most cases, first year employees or employees who were on leave in the prior year may not qualify for FMLA.
FMLA leave grants unpaid leave, but employees may be able to utilize their sick leave, depending on their particular circumstances, to receive full compensation during a period of FMLA leave. Whether an employee can use sick leave depends on the reason for the leave. For example, employees taking FMLA for their own personal disability can use their sick leave pursuant to N.J.S.A. 18A:30-1.
B. New Jersey Family Leave Act (“NJFLA”)
In 1989, the New Jersey legislature enacted NJFLA to provide eligible employees with job-protected, unpaid leave for family care reasons. Specifically, eligible employees are granted a maximum of twelve (12) weeks of unpaid, job-protected leave in a 24 month period to: (1) care for or bond with a child within one year of birth or adoption placement; (2) care for a family member, or someone the “equivalent of family” experiencing a serious health condition. NJFLA was also recently amended to include certain COVID-19 reasons as acceptable under NJFLA.
While NJFLA mirrors FMLA in several ways, it differs in two main reasons. First, NJFLA leave provides for 12 weeks in 24 months, as opposed to 12 months. Second, employees cannot utilize NJFLA leave when they are experiencing their own serious health condition. The second difference is the most important – when an employee is taking a leave for their own absence, only FMLA applies. However, when an employee takes a leave to care for someone else, both FMLA and NJFLA apply – and run concurrently. Accordingly, employees cannot “stack” the applicable FMLA and NJFLA leaves when they take those leaves for the same purpose; instead, the leaves run concurrently by statute and an employee receives a statutory-maximum of 12 weeks in one year to care for a family member.
Like FMLA, NJFLA is unpaid leave. However, whether an employee can use his or her sick leave depends on the reason for the leave. Following the recent changes to N.J.S.A. 18A:30-1, employees now can use sick leave when a family member requires aid or care following a serious medical issue. It is notable that the revisions to N.J.S.A. 18A:30-1 do not address “child bonding time”, but rather permit the use of sick leave by the employee for “aid or care” of a family member due to an “adverse health condition” or “preventative medical care; or other matters involving domestic or sexual abuse. Thus, there is an argument to be made that child bonding time is not a permissive use of sick leave, even following the amendments to N.J.S.A. 18A:30-1. Thus, it is important that school officials determine the actual purpose of the leave to determine whether sick leave applies.
C. New Jersey Family Leave Insurance (“NJFLI”)
If an employee takes a family leave (whether pursuant to FMLA, NJFLA, or both) and the employee cannot utilize sick leave, the New Jersey legislature offers an alternative option. In 2009, the State adopted NJFLI, which is a cash benefit to employees taking a family leave. It is important to note that NJFLI does not provide an employee an entitlement to leave, nor does it give the employee job-protection. Instead, NJFLI supplements another leave and provides the employee with partial compensation.
Eligibility under NJFLI almost perfectly coincides with NJFLA. Thus, employees can receive benefits under NJFLI when taking a leave to care for a family member similar to NJFLA. NJFLI requires employees to apply through the New Jersey Department of Labor and receive approval prior to receiving payment. If accepted, employees can receive up to 85% of their average weekly wage for up to 12 weeks within a 12 month period.
II. MATERNITY LEAVES
Now that the applicable laws have been explained, its important to note their interplay in maternity leaves. Most maternity leaves are comprised of two different types of leave: (1) a disability leave; and (2) a child bonding leave. It is important to understand the distinction between these two pieces, as the “type” of leave triggers the applicable law and benefits.
A. DISABILITY LEAVE – Federal FMLA Applies if Eligible
1. The Presumptive Period of Disability
In New Jersey, a school employee’s request for a maternity leave can be made and granted without the need for much information other than notification of pregnancy and an anticipated due date. The seminal case on the topic is Hynes v. Bloomfield Twp. Bd. of Educ., 190 N.J.Super. 36 (App. Div. 1983). Pursuant to Hynes, a school employee is presumed disabled, and permitted to be absent, four (4) weeks prior to the anticipated due date and four weeks following the actual date of birth. An employee is not permitted to “tack” any unused pre-birth disability time to extend her post-birth disability without a doctor’s certification.
2. The Actual Period of Disability
If an employee seeks to take leave beyond the presumptive period, a doctor’s certification is required. For example, a doctor can certify that an employee needs more than four (4) weeks pre-birth due to the need for bed rest during a high-risk pregnancy, or will certify to the need for additional recovery time post-birth. Generally, most doctors will certify to disability of six (6) weeks following a natural birth, and eight (8) weeks following a Cesarian section. These time periods create the actual period of disability.
3. Applicable Law
Regardless of whether the employee is presumed disabled or actually disabled, the employee’s requested leave qualifies under the federal FMLA, and the employee can receive payment using her sick leave. The disability leave does not qualify under the NJFLA, and the employee cannot receive payment under NJFLI.
Thus, an employee scheduled to give birth on March 1 can begin FMLA as early as February 1, and continue on FMLA through (at least) April 1. If the employee’s doctor certifies to continued disability beyond 4 weeks post-birth, the employee can continue on FMLA through that period. Once the period of disability concludes, the school district should note how many weeks of FMLA have been utilized.
B. CHILD BONDING LEAVE – Federal FMLA and New Jersey Family Leave (“NJFLA”) Apply if Eligible
Once an employee is no longer disabled, whether presumptively or actually, they are medically cleared to return to work following child birth. In most circumstances, employees seek to remain out for a period of time to enjoy a child bonding (also known as child rearing) leave. Child bonding leaves are covered by statute, but may also be addressed by a collective bargaining agreement. Whether an employee can receive compensation while on a child bonding leave depends on the employee’s particular circumstances.
During a period of child bonding, both federal FMLA and NJFLA run concurrently as the leave is taken for the care of a family member. This is required by statute. Thus, if the employee used eight (8) weeks of FMLA during the period of disability, she will use her four (4) remaining weeks of FMLA during the first four (4) weeks of NJFLA. Once her FMLA expires, the employee will then use her remaining eight (8) weeks of NJFLA.
Further, as addressed above, if the employee’s newborn or adopted child is healthy, child bonding leave may not qualify for sick leave under N.J.S.A. 18A:30-1. As such, the employee cannot use their sick leave during this child bonding period. Instead, the employee can apply for NJFLI and receive partial compensation.
C. CONTRACTUAL LEAVES
In most cases, employees will be required to return to work when their disability leave and child bonding leave period conclude. However, in some circumstances, a school district’s collective bargaining agreement may provide the employee with a greater leave entitlement. School officials are reminded to consult this agreement, their Board Policies, and seek the advice of counsel to determine when an employee shall be required to return to work.
Overall, maternity leaves contain some of the most complex legal issues that school officials must evaluate. The interplay of the law, recent modifications, and the impact of collective bargaining make it truly a difficult task to navigate. As always, we encourage clients to contact our office to address each specific request, as the information contained in this Alert is general and non-exhaustive.
(201) 348-6000
(201) 348-6633