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Pregnancy and Maternity Leave for New Jersey Employees: What's New in 2019
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If you're a pregnant New Jersey employee and want to know what your maternity leave, pregnancy, and parental leave rights are, you may be confused about how much maternity leave you can actually take. However, you're luckier than most American women who are not protected with pay under maternity leave laws and only receive unpaid family leave under a federal law called FMLA.

That's because, as a resident of New Jersey, you live in one of only a handful of states in the United States that guarantee women a partially paid maternity leave under the New Jersey Family Leave Insurance (NJFLI) program, which is provided under the state's Temporary Disability Benefits Law. These provisions, which have been around since 2009, already made New Jersey a frontrunner in progressive family care. But in February of 2019, New Jersey Governor Phil Murphy signed legislation into law that significantly expanded this already-progressive program, in addition to expanding the state's existing Family Leave Act (NJFLA). Below, we'll dig into some of the key changes resulting from this 2019 amendment, as well as everything else you need to know about family-building benefits in New Jersey.

Disclaimer: We tried very hard to summarize the high-level points we think you should know if you're a pregnant, working woman in New Jersey. However, we're not attorneys or experts, so please check New Jersey's Department of Labor website for complete information.

The New Jersey Family Leave Act: What's New in 2019?

Currently, the NJFLA applies to employers with at least 50 employees, which is also the minimum for FMLA. Starting on June 30, 2019, this is being adjusted to be inclusive of employees who work for smaller companies. When the law goes into effect this June, employers with at least 30 employees (in total, i.e. including those based elsewhere) will be required to provide their New Jersey employees with 12 weeks of job-protected family leave during a 24-month period. The 2019 amendment also accounts for employees who have taken in a child through foster care, not just giving birth to or adopting a child. New Jersey employees have already been able to take NJFLA leave to care for seriously ill family members. The latest amendment, though, expands the definition of family member to also encompass parents-in-law, siblings, grandparents, and "any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship." 

Additionally, the amendment allows employees to access this intermittent leave, as it relates to the care of a new (birth, adopted, or foster) child, without an employer's approval being required, as was previously the case. Lastly, the prior advance notice requirement of 30 days has been shortened through the 2019 amendment to just a notice of 15 days before taking leave to care for a seriously ill relative (in other leave scenarios, 30 days is still required). 

Other things to note: while taking leave through NJFLA, you're still able to receive company benefits, including health insurance. The law is also gender-neutral, and anyone who plays a parental role in a child's life can make use of it. 

Is FMLA Paid in New Jersey?

No. FMLA or NJFMLA is not paid for in New Jersey — just like FMLA on a national scale is not paid leave. But the program does allow for 12 weeks of unpaid leave when you welcome a new child — either by a pregnancy, adoption, or foster care. The NJFLA also extends the benefits of FMLA by allowing for more people to be eligible.

What is Temporary Disability Insurance (TDI) in New Jersey and How Does It Apply to Pregnant Women?

If you're unable to work due to medical complications related to your pregnancy or childbirth, you may receive temporary disability benefits to cover a portion of your lost wages. In a normal pregnancy, the applicable period of eligibility for these disability payments typically begins four weeks prior to delivery and six weeks after childbirth (or eight weeks in the case of a C-section delivery). You may be eligible for TDI over a longer period if a doctor certifies that you have experienced complications or are still unable to physically perform your job.

What is Family Leave Insurance (FLI) in New Jersey?

Most New Jersey employees are eligible for FLI, which provides up to six weeks of partially paid leave for the period of time you wish to bond with a newborn baby (or adopted child). 

Since FLI and TDI are different and distinct, you may qualify for both TDI and FLI. Note, however, that TDI requires a medical diagnosis demonstrating that you are unable to work due to pregnancy or medical complications. TDI benefits related to pregnancy are treated like any other short-term disability in New Jersey. You learn more about these pregnancy-related benefits on the State of New Jersey's Department of Labor and Workforce Development website.

How Are TDI and FLI Changing in 2019?

The short answer that neither is changing — yet. Thanks to expansions made in New Jersey Governor Phil Murphy's 2019 amendment, expansions are also coming to the state’s temporary disability insurance (TDI) program, of which Family Leave Insurance (FLI) is a part.

Starting on July 1, 2020, the number of weeks of paid leave benefits offering through the program will double, from 6 to 12 within a 12-month period. The amount of intermittent paid leave benefits will also increase, from 42 to 56 days taken during a 12-month period, and this kind of leave can also be used when taking in a new child through foster care. (Previously, as with the Family Leave Act, benefits were specific to birth and adoptive children.) The amendment will also raise the weekly benefit cap, which is currently set at two-thirds of an employee's weekly salary, to 85 percent of one's weekly salary, or a maximum of 70 percent (previously 53 percent) of the state's weekly income average. Starting in July 2020, this means the cap will go from $633 per week to $859.

 Included in the amendment is also a line prohibiting employers from requiring employees to use PTO in place of their state-ordained benefits (however, employees can choose to do this of their own volition if so desired — namely, if using PTO is possible and would financially benefit you more than having a weekly salary percentage cap. Additionally, robust anti-retaliation measures have been incorporated in the amendement for 2020, including provisions for financial damages following retaliation, attorney fees, and reinstatement to the employee's prior position. 

Do You Get Full Pay While on Maternity Leave in New Jersey?

In New Jersey, Maternity Leave assistance currently allows for individuals to make two-thirds of their average weekly income while on leave. (However, as mentioned above, this will change in 2020.)  Note that if your employer’s maternity-pay package is more generous, your employer plan can supplant that which you would get through the state (but you cannot pool funds from both). Under state law, your employer chooses whether to opt into FLI or otherwise provide a private plan; if the latter, it must be equal to or better than the state plan.

How Is FLI Funded?

FLI benefits are fully employee-funded, which means that a small portion of your paychecks is withheld from all New Jersey employees making over a certain amount in order to pay for FLI benefits.

How Much Do I Receive Under TDI and FLI Benefits?

Your FLI and TDI benefits are calculated in the same way. What you will receive is based on the average of your weekly pay for the prior eight weeks. You are entitled to approximately two-thirds of this average weekly pay (up to a maximum of $859 per week as of July 2020). The amount is approximate because you will not see state taxes withheld from your benefits payments (unlike your normal paycheck). 

The schedule of maximum payments is updated periodically, so you should check with the NJ Department of Labor for the latest information.

Family Leave Insurance Benefits: Eligibility and Other Details

New Jersey's DOL website can give you a comprehensive overview of FLI. Here are a few key facts:

•  You must have been paid at least $8,400 or worked for 1,000 hours for the employer in the proceeding 12 months to be eligible (earning a minimum of $168 during each of those weeks) in New Jersey. For more about eligibility, check the State of New Jersey's Department of Labor and Workforce Development website.

• New Jersey employees may take 12 weeks off every two years, not every year (as the national FMLA allows, albeit for a shorter period of time). 

• If your employer pays for your maternity leave, you will not also be able to receive FLI benefits at the same time. You may, however, receive FLI benefits concurrently with any private short-term disability payments you are receiving.

• If you receive any other government benefits (e.g. unemployment insurance or worker's compensation benefits), you will typically not be eligible for FLI benefits at the same time.

• FLI benefits must be taken during the first year of your baby's life and must be taken in chunks of seven consecutive days (unless your employer agrees otherwise).

• There is a waiting period (seven calendar days) before you can start to receive FLI benefits. If your employer requires that you use your fully paid time off to count towards your FLI leave, you can apply that paid-time off towards your waiting period. Moreover, if you are using TDI and FLI consecutively, no second 7-day waiting period applies between the two.

If for some reason you do not qualify for family leave insurance, you always can try to take out private short-term disability insurance policies privately if your employer does not offer a paid leave policy or short-term disability benefits to employees. Technically, a short-term disability policy will cover any health conditions that provide at least partial wage replacement in case you cannot work due to a health condition or medical problem, though pregnant employees commonly use short-term disability insurance benefits to help bridge unpaid periods during the period immediately after birth and for physical recovery and parental leave before they return to work.

It's important to note that there is an application and claim process to apply for short-term disability benefits that involves a doctor's note confirming that your condition renders you unable to work.

How Long Before Your Due Date Should You Go On Maternity Leave?

In New Jersey, to qualify for paid maternity leave you are allowed to leave four weeks before your child’s due date. Note that you are required to use your leave in increments of seven consecutive days, with the agreement of your employer, but those increments must be completed within one year of a child's birth of entry to the family. 

What is the New Jersey Law Against Discrimination?

This law applies to all private and public employers and prohibits them from pregnancy discrimination or discrimination against women due to childbirth or related conditions. Employers may not treat pregnant women less favorably than those who are not pregnant but have similar work abilities. It requires them to provide reasonable accommodations such as bathroom breaks and assistance with manual labor as well.

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