The Myth of Maternity Leave: It’s not legally required and does not always protect your job

Employment Attorneys Serving Northern and Central New Jersey

Just a year and a half ago, the New Jersey legislature passed the New Jersey Pregnant Worker’s Fairness Act (“PWFA”), which prohibits pregnancy discrimination and requires employers to provide reasonable accommodations to pregnant employees. However, the PWFA does not affect an employee’s entitlement to paid or unpaid leave. This begs the question, what maternity/paternity leave is an employee entitled to? While many companies in the United States are beginning to establish paid parental leave policies, unlike many other countries, the U.S. does not require that employers provide job protected, let alone paid, leave for new parents.  

New Jersey also does not require paid, protected leave for all employees who are welcoming a new child into their families. The New Jersey Family Leave Act (“FLA”) provides 12 weeks of protected, but unpaid, leave to care for a newly born or adopted child within one year of the child’s birth or placement. Employees are entitled to 12 weeks of leave under this statute every two years, but are only entitled to the leave if they have worked at least 1,000 hours in the prior 12 month period and provide their employer with 30 days notice. Further, only employers who employ at least 50 workers nationwide are required to provide this leave to their employees. While an employee’s job is protected during this leave (in other words, the employee is entitled to return to the same position or one with equivalent pay, benefits, and status), this leave is unpaid.

In order to receive some monetary benefits during parental leave, employees may apply for temporary disability benefits, which are typically payable for 4 weeks before the expected delivery date and 6-8 weeks after the actual delivery date. In addition, monetary benefits may be provided by New Jersey Family Leave Insurance, which provides 2/3 of an employee’s average weekly wage for up to six weeks during a 12 month period.

Despite the limited parental leave that workers are entitled to under New Jersey law, you may still have rights under the New Jersey Law Against Discrimination if you believe you are being discriminated against because you were pregnant or gave birth to or adopted a child. For example, if your employer regularly provides leave to employees who are disabled despite not being required to do so under New Jersey law, but refuses to give you parental leave, you might have a claim of discrimination. Or, if you take approved time off after childbirth and your employer terminates you during or immediately after the leave, you might have a claim for discrimination depending on the other facts and circumstances and should contact an attorney at Green Savits to review your potential claims.