State Family and Medical Leave Laws

What to do if a state law overlaps with the FMLA.

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The federal Family and Medical Leave Act (FMLA) requires larger employers to give employees up to 12 weeks of unpaid leave a year, with benefits, to care for a new child, to care for a family member with a serious health condition, or to recuperate from their own serious health condition; up to 26 weeks of leave are available to those who need to care for a family member who was seriously injured on military duty. (For information on the FMLA, see Providing Family and Medical Leave.)

But the FMLA is not the only law that protects employees who need time off for caretaking responsibilities or for a serious health condition (and the FMLA does not apply to employers with fewer than 50 employees). Many states also have laws that allow employees to take time off for family and medical reasons (and many states' laws apply to smaller employers). Some of the state family and medical leave laws overlap with the FMLA; others don't. This potential for overlap can be confusing.

This article explains how the FMLA and other federal and state laws might intersect. For detailed information on what to do when more than one family and medical leave law applies (as well as step-by-step instructions for complying with the FMLA), see The Essential Guide to Family and Medical Leave, by Lisa Guerin and Deborah C. England.

Overlap Between the FMLA and Other Laws

State family and medical leave laws often overlap with the FMLA, as do state workers' comp laws and the federal Americans With Disabilities Act (ADA). Generally, when more than one employment law applies, the employee is entitled to every benefit available under every applicable law. In other words, you may not focus solely on the FMLA and ignore your company's obligations under your state's law. Instead, you must give the employee the benefit of whichever law is more generous or provides greater rights.

Workers' comp laws. State workers' compensation statutes, which provide benefits to employees who are injured on the job, might apply to an employee whose work injury is also a serious health condition under the FMLA.

Americans with Disabilities Act. Similarly, an employee who has a disability might be protected both by the ADA and the FMLA.

Types of State Family and Medical Leave Laws

State laws that require employers to provide family and medical leave fall into a handful of categories:

Comprehensive family and medical leave laws. About a dozen states have laws that are quite similar to the FMLA, requiring employers to provide medical, caretaking, and/or parental leave. Typically, these laws overlap with the FMLA in many respects but also offer additional benefits. For example, some laws apply to smaller employers, cover more family members, or allow longer periods of leave.

Pregnancy disability leave laws. Some states require employers to provide time off for pregnancy disability: the length of time when a woman is temporarily disabled by pregnancy and childbirth. Typically, these laws don't provide for a set amount of time off per year or per pregnancy. Instead, they require employers to provide either a "reasonable" amount of leave or leave for the period of disability, often with a maximum time limit.

Adoption leave laws. A handful of states require employers to offer the same leave to adoptive parents as to biological parents. Generally, these laws don't require an employer to offer parental leave. However, employers that choose to offer some form of parental leave must make it equally available to adoptive parents.

Small necessities laws. Some states require employers to allow time off for various family needs, such as attending school functions, taking a child to routine dental or medical appointments, or helping with eldercare. These laws have come to be known as "small necessities" laws, to recognize needs that don't take up much time but are important to employees.

Domestic violence leave laws. Some states allow employees to take time off for issues relating to domestic violence, such as seeking a restraining order, getting medical care or counseling, or relocating to a safe environment.

If a State Law Applies

If your company does business in a state that has its own leave law, you must figure out whether an employee's time off counts against his or her entitlement under the FMLA, state law, or both. You must also figure out which rules to follow when administering leave. Here are a few tips that will help:

  • Start by figuring out which laws apply. If an employee's request for leave is covered only by state law, the FMLA doesn't apply and you don't have to deal with its requirements. For example, if an employee takes family leave under your state's law to care for an ailing domestic partner, the FMLA doesn't apply and you can focus solely on the requirements of state law.
  • If both laws apply, the leaves run concurrently. For example, if your state's law provides six weeks of leave to care for an ailing family member, you may count an employee's time off to care for an ill spouse against both the 12 weeks allowed by the FMLA and the six weeks allowed by state law.
  • If only one law applies, the employee will be able to "stack" leave. If an employee's time off counts only under one law and not the other, the employee will still have leave available. This means that the employee could be entitled to significantly more than 12 weeks of leave in a 12-month period, if otherwise eligible. For example, an employee who takes ten weeks of leave to care for an ill sister under a state leave law still has 12 weeks of FMLA leave to use, because the FMLA doesn't allow time off to care for siblings.
  • If both laws apply, you must allow the employee to comply with whichever notice and certification requirements are less strict. The FMLA allows employers to require a certain amount of notice before employees can take foreseeable leave. It also allows employers to require employees to provide certain documentation of their need for leave. However, if a state law with less burdensome requirements also covers the employee's time off, the employee need only comply with the state's requirements. For example, if a state law requires only two weeks' notice before an employee takes foreseeable leave, the employer may not insist that the employee give the 30 days' notice required by the FMLA.

For detailed information on how state leave laws interact with the FMLA, see The Essential Guide to Family and Medical Leave, by Lisa Guerin and Deborah C. England.

by: , J.D.

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