If your state has its own family and medical leave (FML) law, in some circumstances employees may be able to take both leaves, one after the other, and there’s nothing you can do about it.
To deal with federal/state family leave issues, the first step is to determine which laws apply to you as a company, and then, when considering an individual’s request for leave, which laws apply to him or her.
Which Law Takes Precedence?
The federal Family and Medical Leave Act (FMLA) does not take precedence over any state law that provides greater family or medical leave rights than those provided by FMLA.
In fact, the FMLA expressly provides that the states are free to require additional or expanded protection for employees. (However, the federal Department of Labor will not enforce state laws, and states may not enforce the federal FMLA.)
Although some state FML laws simply mirror the federal requirements, others provide different requirements and/or cover employers or employees who may not be subject to the federal FMLA.
Employers must look carefully at the eligibility criteria for both the federal FMLA and any applicable state law. If an employer meets the eligibility requirements for both laws, it must comply with both. In some cases this will mean that employees are entitled to the full protections of the federal FMLA and also to additional protections under state law.
In some cases, only the state law will cover. For example, an employer that does not meet the 50-employee threshold for coverage under the federal FMLA might still have FML obligations because of a state law that covers employers with 25 employees.
How Separate Leaves May Be Required
Where the reason for state and federal leave is identical, the leave periods under state and federal law run concurrently, unless the state law provides otherwise.
However, if an employee takes leave for a reason authorized under a state law but not covered by federal law, the state leave does not count against the employee’s federal leave. Similarly, taking leave under the FMLA for a reason not covered by a state FML law would not count against an employee’s state FML time.
FMLA changes—the #1 hassle of 2010. BLR’s compliance guide is ready to help now. Click here to find out more about the Family and Medical Leave Act Compliance Guide.
Here are some examples of the interaction between FMLA and State laws:
Example 1—State law provides 6 weeks of leave, which includes leave to care for a seriously-ill grandparent or a “spouse equivalent.”
If leave was used for that purpose, the employee is still entitled to his or her full federal FMLA leave entitlement, as the leave used was provided for a purpose not covered by FMLA.
However, if FMLA leave is used first for a purpose also provided under State law, and State leave has thereby been exhausted, the employer would not be required to provide additional leave to care for the grandparent or “spouse equivalent.”
Example 2—State law provides 16 weeks of leave entitlement over 2 years
An employee needing leave due to his or her own serious health condition (which qualifies under both federal and state law) would be entitled to take 16 weeks one year under State law and 12 weeks the next year under FMLA. Health benefits maintenance under FMLA would be applicable only to the first 12 weeks of leave entitlement each year.
If the employee took 12 weeks the first year, the employee would be entitled to a maximum of 12 weeks the second year under FMLA, not 16 weeks. (The first year would eat up 12 weeks of state leave exhausted concurrently with the federal leave, and the second year would eat up the remaining 4 weeks.)
A whirlwind of changes has hit the FMLA—are you ready to comply? Order BLR’s comprehensive guidebook and find out what you need to do. You’ll get expert FMLA guidance, forms, and concrete examples. Find out more.
Example 3—State law provides half-pay for employees temporarily disabled because of pregnancy for 6 weeks
After taking the 6 paid weeks under state law, the employee would be entitled to an additional six weeks of unpaid FMLA leave (or accrued paid leave).
Example 4—State law prohibits mandatory leave beyond the actual period of pregnancy disability
An instructional employee of an educational agency subject to the special FMLA rules for educators could not be required to remain on leave until the end of the academic term, as is permitted by FMLA under certain circumstances.
In tomorrow’s Advisor, state vs. federal coverage and eligibility, state specialized leave laws, and an introduction to the “FMLA Bible.”