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October-November 2006: Reconciling the FMLA with State Leave Laws

Robert L. Duston and Monique Cioffalo  11/1/2006
 

One of the more challenging aspects of compliance with the Family and Medical Leave Act (FMLA) is grasping how to coordinate its requirements with other employer leave obligations.

Much has been written about coordination of the often overlapping obligations under the FMLA, the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Americans with Disabilities Act (ADA), and workers� compensation laws. But the FMLA also should be coordinated with state leave laws, which often go beyond the FMLA�s requirements.

The FMLA expressly states that it does not supersede any aspect of a state or local law that provides greater leave rights. So, if a particular aspect of an applicable state law regarding an employee�s right to family or medical leave is more generous than a provision in the FMLA, the employer must apply that aspect of the state law.

The most frequent compliance issues we encounter in our practice involve determination of coverage�which employers, employees and types of leaves are covered. Many states that had state family and medical leave laws before the FMLA have since amended those laws, and other states have adopted new laws to supplement the FMLA, with the intent of providing more generous protections than under federal law. State leave laws that seem to parallel the FMLA often differ from the FMLA in their definition of who is a covered �employer� or �employee,� what constitutes a �serious health condition,� which family members the employee may take leave to care for, and sometimes which types of leave can be taken. The examples used in this article, like the FMLA, apply to both public and private employers. There are some states where state family leave laws apply only to public employers. In many other states, the rights of various public employers may be found in a state personnel law or another law not specifically labeled a �family and medical leave� act.

The employer may have to provide consecutive leave periods�some leave under the FMLA and then more under the state law for a type of leave not covered by the FMLA. Or the employer may have to provide an employee with a longer leave period under the state statute but may have to comply with the notice and certification procedures set forth in the FMLA for leave covered by both laws, in addition to any obligations under USERRA, the ADA or other laws.

As a result, employers should consider the entire family of leave laws, not just the FMLA, other federal laws with leave requirements or leave-related provisions, and workers� compensation statutes. Though state family and medical leave laws cover the same types of leave as the FMLA, they are rarely twins of the federal statute and require employers� individual attention.

Different Borders, Different Definitions

The FMLA applies to all employers with at least 50 employees employed within 75 miles of the worksite and covers all employees that have been employed for at least 12 months and have worked at least 1,250 hours during the immediately preceding 12-month period. The FMLA covers leave taken to care for the employee�s own serious medical condition or that of their spouse, child or parent, which are all defined terms. The FMLA provides no right to take leave to care for one�s in-laws.

By contrast, several state leave laws cover employees after six months or less (e.g., Hawaii, Massachusetts and Oregon) or after 1,000 hours (e.g., Connecticut, District of Columbia, New Jersey and Wisconsin). At least eight states and the District of Columbia protect leave to care for a parent-in-law (Connecticut, Hawaii, New Jersey, Oregon, Rhode Island, Vermont, Washington and Wisconsin) or domestic partner (California, District of Columbia). State laws often cover smaller employers, such as those with as few as one employee in the District of Columbia and, for pregnancy leave, Montana; four (for pregnancy leave) in Iowa; 15 in Maine and Vermont; and 25 in Louisiana (for pregnancy leave) and Oregon.

More Generous Certification Provisions

Nothing in the statute or legislative history of the FMLA suggests that an independent FMLA violation would be triggered if an employer were to provide FMLA leave but fail to provide more generous leave under state law. However, there are situations in which the employer�s rights under the FMLA may be constrained by state law provisions that are considered �more generous.�

For example, the FMLA permits employers not only to require that employees provide a medical certification but also to challenge the employee�s certification. Yet the FMLA regulations provide that in a state where an employee only needs to provide one medical certification to prove eligibility under that law, the employer would not be permitted to exercise its FMLA rights to request a second or third certification. 29 C.F.R. �825.701(4). According to the U.S. Department of Labor (DOL), if an employee in such a state requests leave covered under both laws and the employer requests a second opinion, it would violate both state and federal law.

Consecutive Leave

Where leave is covered by both the FMLA and state leave laws, the time off typically may run under the federal and state statutes concurrently. However, this is not the case when leave mandated by state law is not covered by the FMLA.

Inconsistencies in the coverage of the laws often will result in the employee being guaranteed consecutive leave periods because the basis for the leave was not covered under both the FMLA and state leave laws.

As noted in the comments to the final regulations for the FMLA, �if an employee takes leave for a purpose which is recognized under only one of two laws, rights and obligations are governed by that law alone, and the amount of leave taken cannot be charged against the amount of leave which may be allowed under the other law.� 60 Fed. Reg. 2230 (Jan. 6, 1995).

For example, if an employee first requests leave that is covered by the FMLA but not a parallel state law, the employee may take up to 12 weeks off for that condition under the federal statute. The employee, however, has not used up the leave provided by the state statute and would be permitted to take the additional leave provided by that statute, in the same 12-month period, for a condition covered by the state law, even if the condition is covered by the FMLA as well.

The New Jersey Family Leave Act (NJFLA) provides a good case study on the interplay between leave laws that cover different conditions. In New Jersey, if an employee requests 12 weeks of medical leave due to his or her own serious medical condition, such leave would be protected under the FMLA, but not under state law. The NJFLA, unlike the FMLA, does not provide for leave to care for an employee�s own serious medical condition.

If the same employee subsequently requests leave in the same year for any reason covered by the New Jersey law, such as maternity leave or leave to care for a sick family member, that employee would be permitted to take up to an additional 12 weeks off under the New Jersey statute within the same 12-month period. FMLA leave that does not run concurrently with state leave cannot be used to offset the amount of leave the state statute provides, so the employee must be permitted to take the entire amount of leave provided by the state statute in addition to the full 12 weeks of FMLA leave.

The converse is also possible. The New Jersey law provides leave for the serious health condition of a parent-in-law, whereas the federal law provides leave for the care of the employee�s own parent, but not a parent-in-law. If an employee requests leave to care for a parent-in-law under the New Jersey law, the employee is still eligible for the full 12 weeks of leave under the FMLA during the same 12-month period. Keep in mind, however, that cumulative leaves will occur only when the reasons for the leave are not covered by both statutes.

For example, if a New Jersey employee had initially taken leave to care for a biological parent, the leave, which is protected under the FMLA and state law, would be counted against both. If the employee exhausts the entire 12 weeks, the employee could not take any additional leave, under state or federal law, during that year.

More Time Off

Another frequent issue is coordinating the length of leave provided by the FMLA and state laws. Many states provide for longer leaves than the FMLA�s 12 weeks, and the length of the leave varies widely from state to state.

For instance, Connecticut and the District of Columbia provide up to 16 weeks of family and medical leave in a 24-month period. In the case of a D.C. employee with a condition covered under both the FMLA and D.C. law, the employer must comply with federal FMLA requirements during the first 12 weeks of covered leave, along with any �more generous� provisions of D.C. law. After 12 weeks, the remaining four weeks available under D.C. law (up to 16 weeks in a 24-month period) is governed solely by the provisions of D.C. law. (Note though that unless state law contains a provision for continuation of medical coverage, the employer is not required to continue providing such coverage after the end of the FMLA-protected 12-week period.)

Other states also provide longer leave periods, but only for specific conditions. For example, California, Louisiana and Tennessee provide pregnant employees with up to 16 weeks of covered leave for conditions related to the birth of a child.

Oregon is another good example. Oregon generally provides 12 weeks of leave to any employee to care for the employee�s own serious health condition, to care for a family member with a serious health condition or to care for an infant. Oregon law also provides an additional 12 weeks of leave, in the same 12-month period, to any female employee for any pregnancy-related condition, illness or disability that renders the employee unable to perform any job duties. An employee who has taken 12 weeks of leave under the state law to care for a parent may take an additional 12 weeks off in the same 12-month period for pregnancy-related conditions, and vice versa.

The Oregon statute also provides to any employee, male or female, who has already taken leave to care for a newborn, an additional 12 weeks of leave for the purpose of caring for a child who does not have a �serious medical condition� otherwise covered under the statute, if no other family member is available to care for the child.

Unlike the New Jersey example above, the provision of additional time off does not depend on the coverage of the Oregon statute or its interaction with the FMLA. It would be of no consequence if the employee requested the pregnancy-related leave before or after the other family leave, or whether such leave was running concurrently with the FMLA. The statute provides for the additional leave rights in certain circumstances above and beyond the FMLA, and the employer must permit employees to take this leave, in many cases consecutively with FMLA leave.

Stacking of Leave Rights

The FMLA regulations permit employers to choose how they will calculate the 12-month period. This decision can have a substantial impact on coordination of rights and the amount of protected leave an employee may receive.

Employers have four options for calculating the 12-month period:

    A simple calendar year beginning on Jan. 1 and ending on Dec. 31 of each year.

    Any other �fixed� year, such as a fiscal year or a year beginning on the employee�s date of hire.

    A �forward� year, which is calculated for the 12-month period forward from the first date FMLA leave is taken by a particular employee.

    A �rolling� backward year, which is calculated for the 12-month period backward from each date the employee uses FMLA leave.

The use of a rolling backward year has become the most common, at least among larger or more sophisticated employers, because every other method has a built-in risk of stacking leaves if the need for leaves happens to overlap the end of a �year.�

Administratively, it is easiest to track FMLA leave when using a calendar or other fixed year. But use of this method allows the possibility for employees to extend their leave periods.

Under the calendar-year approach, an employee whose need for leave happens to straddle Jan. 1 would be entitled to take up to 24 weeks of consecutive leave, provided the employee is otherwise protected. This stacking problem is exacerbated by state leave laws that permit an employee to take more leave than the federal FMLA.

For example, a D.C.-based employer who uses a calendar-year method might be required to provide a qualifying employee with a 16-week leave under D.C. law at the end of the year and a consecutive 12-week leave pursuant to the FMLA in the next calendar year.

In the New Jersey examples above, an employee could take consecutive leaves of up to 24 weeks in one year under both the state and federal statutes for conditions that are not covered by both laws. If the employer used a calendar- or fixed-year method, then, with stacking, the amount of consecutive leave could be nine months or more, where the employer might need to guarantee reinstatement. The most conservative and cost-effective course of action to minimize stacking is for an employer to incorporate notice of a rolling-year calculation into its FMLA-leave policy, and into any leave under its state-law policy.

However, a policy designating the year as a �rolling year� will not trump any state law that specifically defines a 12-month period in a more beneficial manner, or any state law that gives the employee the right to choose the calculation method.

For example, California employers covered by the state statute providing for paid family and medical leave (Cal. Unemp. Ins. Code �3302(k)) must calculate the 12-month period as a fixed year beginning on the date an employee first takes leave covered by the statute. Similarly, the Rhode Island leave law (R.I. Gen. Laws �28-48-2) requires using a calendar year for the purpose of calculating the leave period.

Internal Leave Policies

Where an employer has implemented an independent personal, sick, and/or vacation leave policy that provides more beneficial leave to employees than under the FMLA, the employer must give effect to that policy in addition to state and federal FMLA laws. 29 C.F.R. �825.700(a).

Employer-provided leave that is also covered by the FMLA may run concurrently with FMLA-leave periods so as not to provide the employee with more than 12 weeks of leave in any 12-month period. The regulations require that the employer notify the employee that the leave taken pursuant to the employer�s policy will be counted against the employee�s 12-week FMLA-leave allowance. 29 C.F.R. �825.208(a).

Employer policies that are more generous than the FMLA, such as allowing employees to earn and take medical leave after a waiting period of only three or six months, can lead to stacking and to new employees having leave rights greater than more senior employees.

State Benefits Laws

The rules regarding the interaction of the FMLA and corresponding state leave laws apply with equal force to other benefits laws, even if not specifically called �family or medical leave� laws.

Two common examples are state disability and workers� compensation laws. A typical workers� compensation system provides reimbursement of medical expenses, and sometimes lost income, and forbids retaliation but does not expressly require medical leaves and return-to-work rights. Employers have an economic incentive in returning employees to work (because it may reduce the cost of claims) and will often hold jobs open.

Employers sometimes forget that workers� compensation leave often is �medical leave� for a �serious health condition� that qualifies under the FMLA. As with the state family medical leave laws, employers must comply with both the state benefits laws and the FMLA where the basis for benefits also permits the employee to take FMLA leave.

If the employee declines light-duty work and requests FMLA leave, the employer must grant the FMLA leave but is permitted to dock the time. Conversely, if the employer fails to send a notice that the time off is counted as FMLA leave and the employee has not requested �medical leave,� the employee may take issue with the employer�s counting that time as FMLA leave, despite the Supreme Court�s decision striking down the U.S. Department of Labor�s (DOL) penalty for late notice in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002). (See the sidebar on notice.)

Notice Penalty Axed

The original FMLA regulations provided that employers needed to promptly notify employees whether a particular absence would be charged against FMLA protections, and that the failure to provide such notice still gave employees FMLA protections during that time but prevented the employers from charging the leave time against the FMLA 12-week limit. 29 C.F.R. �825.700(a). In 2002, the Supreme Court held in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), that this regulation was an inappropriate extension of the rights afforded by the act. Despite this ruling, the original regulation is still on the books and failure to designate the time off as FMLA leave may lead to an employee�s challenge; so the prudent approach remains to inform employees, whenever possible, that leave is being charged against FMLA-type rights.

A different situation is posed by state disability laws, such as the New Jersey Temporary Disability Benefits Law (N.J. Stat. Ann. �43:21-25), which provides state-paid, weekly benefits to employees out of work due to a nonoccupational sickness or injury.

The law does not provide for additional leave and assumes that employees will be out of work at the time the benefits are received. There are similar laws in other states that are benefits laws, not leave laws.

Employees sometimes erroneously perceive that they have protected leave under benefits law in addition to benefits.

Employers should understand that the availability of disability benefits does not substitute or excuse the need to comply with the FMLA. Employers may not fire a disabled employee who is receiving such benefits if the employee is simultaneously covered by the FMLA or related state leave law.

However, if an employee has already exhausted his or her FMLA rights, the fact that the employee might qualify for additional paid disability benefits does not trigger an obligation for the employer to give additional leave, continue medical benefits or provide reinstatement rights.

Challenge for Multi-state Employers

Multi-state employers face substantial challenges in trying to balance compliance with overlapping leave laws and efficient HR policies.

While we understand the administrative benefits and fairness of one-size-fits-all policies, this often results in providing far more leave than would be otherwise required. This is particularly true when an employer with FMLA-covered operations in one state extends such benefits to employees in smaller facilities in a state with more generous benefits.

In our experience multi-state employers are better served by applying a more conservative leave policy that complies with the minimum requirements of the FMLA, then modifying that policy to comply with more generous state leave laws and carving out exceptions for their smaller facilities where extended leave may not be required or feasible.

Robert L. Duston is a shareholder and Monique Cioffalo is an associate with the Washington, D.C., law firm of Saul Ewing LLP, where they represent private and public employers on a wide range of employment law, labor and human resources issues. Duston provided an overview of leave law requirements at the 2005 SHRM Annual Employment Law & Legislative Conference.

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