Five years ago, New Jersey’s legislature amended the law covering family leave insurance to expand its benefits and provide a private cause of action for retaliation for using those benefits. This amendment was significant because it arguably established a claim for failure to reinstate an employee under a statute that does not provide any protected leave. This created an issue because not all employees covered by this law are entitled to protected leave. New Jersey Courts have not yet grappled with how this statute would interact with the New Jersey Family Leave Act’s inapplicability to small employers. This article explores the differences between the parameters of these leave and benefits laws, explores a case that addressed this issue, and discusses how small employers and their lawyers can prepare to defend against a new and possibly unintended retaliation claim.

New Jersey Leave, Benefits, and Amendments

In New Jersey, there are two laws that address protected leave and benefits to care for sick or injured family/loved ones or to bond with a new child. In the simplest terms, the New Jersey Family Leave Act (NJFLA) provides up to 12 weeks of protected leave and New Jersey Family Leave Insurance (NJFLI) provides up to 12 weeks of cash benefits. A critical difference between the two laws is that the NJFLA only applies to employers with 30 or more employees while the NJFLI covers most employers and employees regardless of size. This difference in coverage creates a situation where employees of small companies can be entitled to cash benefits under the NJFLI, but not any protected leave.