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NJ: FMLA bonding with child, can husbadn and wife take leave at same time New Jersey

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  • NJ: FMLA bonding with child, can husbadn and wife take leave at same time New Jersey

    My HR department is telling me that I cannot take FMLA for the purpose of bonding with my child because my wife will be out on FMLA at the same time. They referred to this as "double dipping". I can't anything that supports their claim. My wife and I do NOT work for the same employer. My understanding is that we are each entitled to 12 weeks for bonding and I don't see why any portion of it can't be together.

    How would NJFLI payments work in the same situation above? Would my wife and I each be entitled to the 6 weeks of payments. Again, I can't find any indication that this would be otherwise limited.

    Can you please provide me with support for your statements so I will have somehting to present to HR, if I am correct.

  • #2
    My understanding is that we are each entitled to 12 weeks for bonding and I don't see why any portion of it can't be together.

    If you and your wife work for different employers, you are each entitled to up to 12 weeks of FMLA for baby bonding purposes. (In your wife's case, her 12 weeks is less any FMLA time she's already taken due to being pregnant and giving birth.) I think your HR department is confused. What they are saying would be correct if you both worked for the same employer. Go back to HR and ask them to show you documentation from the Act that says you may not take FMLA while you're wife is on FMLA. (They won't be able to find it.) If they still deny leave, then contact the federal DOL and file a complaint.

    How would NJFLI payments work in the same situation above? Would my wife and I each be entitled to the 6 weeks of payments.

    I'm not an ace on NJ reg's but if I recall correctly, that's a State provided disability benefit. Your wife is entitled to disability benefits for the time she was unable to work due to her pregnancy. Neither of you are entitled to any benefits for leave time you take simply for baby bonding/baby care purposes.
    Last edited by Beth3; 07-25-2011, 12:06 PM.

    Comment


    • #3
      Here's a cite for you to take to HR: http://www.garlands-digest.com/regs/...fr825.120.html

      29 CFR § 825.120 Leave for pregnancy or birth.

      (a) General rules. Eligible employees are entitled to FMLA leave for pregnancy or birth of a child as follows:

      (1) Both the mother and father are entitled to FMLA leave for the birth of their child.

      (2) Both the mother and father are entitled to FMLA leave to be with the healthy newborn child (i.e., bonding time) during the 12-month period beginning on the date of birth. An employee's entitlement to FMLA leave for a birth expires at the end of the 12-month period beginning on the date of the birth. If state law allows, or the employer permits, bonding leave to be taken beyond this period, such leave will not qualify as FMLA leave. See § 825.701 regarding non-FMLA leave which may be available under applicable State laws. Under this section, both the mother and father are entitled to FMLA leave even if the newborn does not have a serious health condition.

      (3) A husband and wife who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for birth of the employee's son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement, or to care for the employee's parent with a serious health condition. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as a husband and wife are employed by the "same employer." It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 12 weeks of FMLA leave. Where the husband and wife both use a portion of the total 12-week FMLA leave entitlement for either the birth of a child, for placement for adoption or foster care, or to care for a parent, the husband and wife would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes. For example, if each spouse took 6 weeks of leave to care for a healthy, newborn child, each could use an additional 6 weeks due to his or her own serious health condition or to care for a child with a serious health condition. Note, too, that many State pregnancy disability laws specify a period of disability either before or after the birth of a child; such periods would also be considered FMLA leave for a serious health condition of the mother, and would not be subject to the combined limit.

      (4) The mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. Circumstances may require that FMLA leave begin before the actual date of birth of a child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work. The mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days. For example, a pregnant employee may be unable to report to work because of severe morning sickness.

      (5) The husband is entitled to FMLA leave if needed to care for his pregnant spouse who is incapacitated or if needed to care for her during her prenatal care, or if needed to care for the spouse following the birth of a child if the spouse has a serious health condition. See § 825.124.

      (6) Both the mother and father are entitled to FMLA leave if needed to care for a child with a serious health condition if the requirements of §§ 825.113 through 825.115 and 825.122(c) are met. Thus, a husband and wife may each take 12 weeks of FMLA leave if needed to care for their newborn child with a serious health condition, even if both are employed by the same employer, provided they have not exhausted their entitlements during the applicable 12-month FMLA leave period.

      Comment


      • #4
        You might want to review these links re the federal FMLA, NJ FMLA (NJFLA) & the Paid Family Leave Act.

        federal FMLA - http://www.dol.gov/whd/fmla/index.htm - job protection - unpaid leave

        NJ Fam. Leave act (NJFLA) - http://www.nj.gov/oag/dcr/law.html#FLA job protection - unpaid leave

        NJ Paid Fam. Leave Act - employees may take up to 6 wks. of pd. family leave at any time within one year of the birth or adoption of a child, etc. (see link) - no job protection but paid leave http://lwd.state.nj.us/labor/fli/fliindex.html

        questions & answers re above pd. fam. leave - http://lwd.state.nj.us/labor/fli/content/fli_faq.html

        N J also has a state disability income plan to get pd. while off on unpd. disability leave. http://lwd.dol.state.nj.us/labor/tdi/tdiindex.html This is NOT leave but pay/income while you are on leave - it gives you no add'l. leave time.
        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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