Consider State Laws When Measuring FMLA Eligibility

Tracking employee leave eligibility under federal law isn't easy, and state laws can add another layer of complexity, even when determining which method to use to calculate the 12-month eligibility period. Here are some things to consider when developing a family and medical leave policy.

Under the federal Family and Medical Leave Act (FMLA), covered employees can take up to 12 weeks of unpaid leave in a 12-month period for qualifying medical conditions. Employers can choose from four methods to calculate the 12-month period—but state leave laws may be more stringent.

"Employers with multistate operations must be aware that different obligations might be imposed on them depending on the particular state of operation," said Terry Dawson, an attorney with Barnes & Thornburg in Indianapolis.

State Nuances

The FMLA provides employees with unpaid, job-protected leave for certain reasons, including to care for a newborn, adopted or foster child; to care for a family member with a serious medical condition; or for an employee's own serious medical condition. 

Employees are eligible to take leave if they work at a location where there are 50 or more employees within 75 miles, have worked for their employer for at least 12 months and have worked at least 1,250 hours in the previous 12 months.

The FMLA sets the minimum standards, which means that states can opt to provide more-generous leave options for employees. California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington and Wisconsin, as well as Washington, D.C., each have their own family and medical leave laws.

Some state laws expand the amount of leave that may be taken or add to the definition of covered family members.

Although many state "mini-FMLA" laws mirror the federal law's options for calculating eligibility time periods, there are others that differ, said Casey Kurtz, an attorney with Littler in Pittsburgh.

Under federal law, employers may choose to measure the 12-month period by:

• The calendar year.
  
• Any fixed 12-month period (such as a fiscal year or starting on an employee's anniversary date).
  
• The 12-month period measured forward from the date an employee's first FMLA leave begins.
  
• A rolling 12-month period measured backward from the date an employee uses any FMLA leave.
  

[SHRM members-only toolkit: Managing Family and Medical Leave]

Once an employer selects a method, the FMLA's regulations require an employer to use the same leave-year calculation for all employees, with a very limited exception, Kurtz noted. Employers are allowed to use a different leave-year calculation for employees in a state where the mini-FMLA law dictates a method that is different from the one the employer has chosen to use for employees outside of that state.

Most states allow for either a fixed or rolling method for calculating eligibility time periods, or they don't specify how to calculate the time period, which leaves the decision to the employer, explained Felicity Fowler, an attorney with McGinnis Lochridge in Dallas and Houston. But some states limit an employer's options. 

There can be other discrete differences, according to Craig O'Loughlin, an attorney with Snell & Wilmer in Phoenix and Orange County, Calif. For instance, Connecticut law provides for 16 weeks of leave during a 24-month period. "Employers should always consult legal counsel before selecting a particular method," he said.

Multiple Methods

Technically, state laws only limit the methods that an employer can use to calculate state leave coverage, not federal FMLA leave eligibility, Kurtz noted. But as a practical matter, state laws can steer employers away from selecting certain options to streamline administration of federal and state leave.

For example, Wisconsin's mini-FMLA law (WFMLA) requires employers to use the calendar year for measuring state leave eligibility. Regardless of the method an employer uses for measuring federal FMLA leave, it must use the calendar year method for measuring WFMLA leave, he explained. Employers covered by the WFMLA who have not chosen the calendar year method for federal FMLA compliance have two options:

• Measure WFMLA entitlement using the calendar method while choosing to use their other chosen method for measuring federal FMLA entitlement for those same Wisconsin employees.
  
• Choose to measure Wisconsin employees' WFMLA and federal FMLA entitlements using the calendar method. 
  

"Either approach produces its own administrative headaches, so employers should carefully consider the different options and clearly communicate them to employees in the applicable state," he said. 

Often times, state leave and FMLA leave will run concurrently, and when those laws conflict, the employee is entitled to the protections of whichever law is more generous to the employee. 

Outsourcing

Leave laws are complicated, which makes outsourcing leave administration an attractive option for many businesses. Employers that outsource FMLA administration to third parties should note, however, that they are still responsible for complying with federal and state laws, Kurtz said, adding that it is important to:

• Understand the employer's direct FMLA obligations that are retained despite outsourcing (such as the need to train supervisors about FMLA compliance and make sure that employee notifications are delivered to the third party).
  
• Ensure that the third party's processes, forms and letters are consistent with the FMLA, applicable state law and the company's own policies, no matter how established or reputable the third party might be.
  
• Ensure that the employer can access administrative and medical documents that the third party creates and receives, in case the employer needs to confirm compliance before adverse action is taken against an employee or to facilitate the interactive disability accommodation process if additional leave is need.