Advice for Coordinating Federal, State and Local Leave Laws

The Family and Medical Leave Act (FMLA) requires covered employers to grant full-time employees a maximum of 12 weeks of unpaid, job-protected leave during a 12-month period for the following reasons:

• To care for a newborn child, a newly adopted child or a child placed with an employee for foster care
• To care for a child, parent or spouse who has a serious health condition
• For an employee’s own serious health condition.

The act, which went into effect on August 5, 1993, applies to any employer engaged in commerce who employs 50 or more employees. Special rules apply to employers who have collective-bargaining agreements.

Before the FMLA, 34 states and some local governments enacted family-and medical-leave legislation. The state and local laws often are applicable to the same employers who are subject to the FMLA. The U.S. Department of Labor’s (DOL) interim final FMLA regulations, issued June 3, 1993, make clear that an employer must comply not only with the FMLA, but also with state and local laws regarding family and medical leave, as well as state and local laws that prohibit discrimination in employment.

Because employer rights and obligations provided by state and local laws vary significantly from each other and from the rights and obligations of the FMLA, they subject employers to a complexity of rules that often appear inconsistent. Although the DOL’s regulations address the interplay between FMLA and state and local statutes to some degree, they don’t provide a definitive resolution for coordinating leave policies. Nor do the DOL’s regulations fully explain the impact on leave decisions of federal, state and local laws that prohibit discrimination in employment on the basis of race, religion, color, national origin, gender, age or disability.

The issues that arise in coordinating FMLA compliance with that of local and state laws stem from the clause in the act that states: “[n]othing in this Act…shall be construed to modify or affect any Federal or State law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability…”; and “[n]othing in this Act…shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act or any amendment made by this Act.”

To make matters worse, no single agency empowered to interpret or enforce a particular statute can give an employer conclusive guidance in complying with other statutes. Federal, state and local laws that impact leave policies are enforced by multiple agencies. For example, the U.S. Department of Labor enforces FMLA. The Equal Employment Opportunity Commission (EEOC) enforces and interprets the Americans with Disabilities Act.

What should employers do?
To comply with the multitude of federal, state and local legislation employers should:

1. Identify all sources of legislation that govern its leave decisions.
2. Identify the differences between all applicable family-leave statutes. Key areas of contrast between the FMLA and state and local laws to be reviewed are:

Once the differences between the FMLA and an applicable state or local law are identified, an employer must then determine whether the state law provides a more favorable leave benefit for the employees than the benefit found in the FMLA. If so, an employer must blend the state requirements with those of the FMLA and comply with whichever grants the more favorable leave benefits to employees.

Some suggestions for blending the leave requirements are:

1. Reasons for leave.
   The regulations make clear that an employee eligible for leave under only one law (FMLA or state) is entitled to benefits in accordance with that particular statute. Different rules may apply if a state or local statute permits leave for reasons permitted but not covered by the FMLA. For example, if a state law provides leave to care for a seriously ill grandparent or a spouse equivalent, neither of which are covered by the FMLA, an employee who takes leave for this purpose remains entitled to all leave permitted by the FMLA. However, if leave covered by the FMLA is used first for a purpose for which state law also provides, and state leave has been exhausted, the employer isn’t required by the FMLA to provide additional leave to care for the grandparent or spouse equivalent.
2. Duration of leave.
   The FMLA entitles employees to as many as 12 weeks of leave during any 12-month period. Leave may be taken intermittently or on a reduced-leave schedule. Leave to care for a newborn or newly adopted child may be taken if the employer and employee agree to the arrangement. Employees may take medical leave intermittently or on a reduced-leave schedule when medically necessary without permission from the employer. The regulations provide that if an employee qualifies for leave under the FMLA, as well as leave under state law, the leave used counts against the employee’s entitlement under both laws.

3. Notice of leave.
   The FMLA and state statutes require employees to give their employers varying periods of notice. Under the FMLA regulations, a “shorter notice period under State law must be allowed by the employer unless an employer has already provided, or the employee is requesting, more leave than required under State law.”
4. Medical certification.
   Under the FMLA, an employer may require that an employee provide certification of his or her serious health condition, or that of a family member, in a “timely manner.”

5. Benefit and salary continuation.
   The FMLA entitles employees on leave to receive the same health-benefit coverage as when working. In addition, leave may not result in the loss of any previously accrued seniority or employment benefits. Employers aren’t required to continue the accrual of benefits during the leave.

The FMLA regulations likewise make clear that FMLA rights may not be reduced by an employment-benefit program, plan or collective-bargaining agreement (CBA). For example, the FMLA supersedes provisions of a CBA that provide for reinstatement to a position that isn’t equivalent.




Family leave is unpaid under the FMLA. However, the national act provides that the employee may elect, or an employer may require, the employee to substitute any of the employee’s paid vacation leave, personal leave or paid family leave for any part of the 12-week period of leave.



6. Job-restoration rights.
   Under the FMLA, an employee who completes a leave must be returned either to the same position as before, or to a position equivalent in pay, benefits and other terms and conditions of employment. The act provides a limited exemption from the restoration requirement for certain highly paid employees.
7. The effective date of the FMLA for companies with collective bargaining agreements.
   For companies that had CBAs in effect on August 5, 1993, the FMLA becomes effective for the company on February 5, 1994, or the date that the CBA terminates, whichever date is earlier.

Take federal and state discrimination laws into account.
Employer obligations neither begin nor end with family-leave-legislation compliance. Adding to the complexity are additional federal, state and local laws regarding discrimination-among them the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA).

The PDA requires that employers provide leave to employees who are temporarily and medically disabled, because of pregnancy, childbirth or related conditions, in a like manner to that provided to employees who are disabled for other nonwork-related conditions or injuries. ADA prohibits both public-and private-sector employers from discrimination against persons with disabilities. It also requires that employers reasonably accommodate employees and applicants with disabilities, so long as such accommodation doesn’t result in undue hardship to the employer. Accommodation includes job restructuring, and permitting part-time or modified work schedules.

An employer may be confronted with a family-leave request by an individual considered disabled under the ADA or a comparable state statute. The regulations make clear that the employer must afford an employee his or her rights provided by the FMLA, and reasonable accommodation as required by the ADA.

The following examples contained in the FMLA’s regulations illustrate potential areas of employer concern:

1. A reasonable accommodation under the ADA may be accomplished by “providing the employee with a part-time job with no health benefits.” The FMLA permits an employee to work a reduced-leave schedule during his or her 12 weeks of leave, and requires the employer to maintain health benefits during this period at its cost. At the end of the leave entitlement, the employer would then be required to reinstate the employee to the same job or to an equivalent position.
   
   However, if the employee were unable to perform the equivalent position because of a disability, and the employee ex-hausted family-leave entitlements, the ADA “may permit or require the employer to make a reasonable accommodation at that time by placing the employee in a part-time job, with only those benefits provided to part-time employees.”
2. Although family-leave statutes may entitle an employee to take leave, the regulations make clear that an employer may not, in lieu of family leave, “require an employee to take a job with a reasonable accommodation. However, the ADA may require that an employer offer an employee the opportunity to take such a position.”
3. If an employer requires a health-provider’s certification that an employee is fit to return to work as permitted by the FMLA, then the employer “must comply with the ADA requirement that a fitness-for-duty physical be job-related.”

This analysis requires careful comparison of the multitude of provisions found in the FMLA and state and local laws. Potential back-pay liability, attorneys’ fees and costs associated with management time being diverted to respond to administrative charges and litigation, may result if an employer fails to consider or incorrectly discharges all sources of its family-and medical-leave obligations.