Week after week, it seems, a new city or state enacts its own paid leave law of some sort.
For employers obligated to comply with the federal FMLA and these local leave laws, it’s death by a thousand paper cuts.
These paid leave laws come in all shapes and sizes. Many of them permit leave for circumstances that may be qualifying FMLA leave reasons as well. Some define qualifying family members more broadly than the FMLA (e.g., grandparents or parents-in-law). Some provide leave for a different set of health conditions, and others provide a leave period longer or shorter than that provided by the FMLA.
How do employers designate FMLA leave when one of these state paid family and medical leave laws also applies to the absence? And secondly, if the employee is already receiving compensation under a state paid leave law, can the employer require the employee taking FMLA to exhaust employer-provided paid leave at the same time?
Earlier this week, the DOL reminded us of the answers to these questions in a newly released opinion letter. Normally, these opinion letters are a quick jaunt through FMLA 101, but in this instance, a return to the basics wasn’t half bad, given the moving parts of the FMLA and state/local paid leave laws.
Insights for Employers
In its opinion letter, DOL clarified two principles when an employee is taking leave covered by both the federal FMLA and state paid family and medical leave:
- Always designate if FMLA applies! In situations where an employee takes leave under a state/local paid leave program, if the absence ALSO triggers the protections of FMLA, the absence must be designated as FMLA leave. In this instance, all required federal FMLA and state/local notices, as applicable, should be sent to the employee.
- No double-dipping allowed! As the FMLA regulations make clear, the FMLA is an unpaid leave statute, but the law allows the employee to elect, or an employer to require the employee, to “substitute” employer-provided paid leave (e.g., paid vacation, paid sick leave, etc.) for any part of the unpaid FMLA period. 29 CFR § 825.207(a). But here’s the kicker: if an employee, during leave covered by the FMLA, receives any compensation from a state/local family or medical leave program, the employer cannot force the employee to exhaust any employer-provided paid leave at the same time.
Let me be clear on this point, as it can be confusing. When an employee is drawing from a state paid family or medical leave program, you cannot require that they also exhaust their employer-provided paid. That said, you and your employee together can agree that you will “top-off” their benefits up to 100% pay by exhausting their employer-provided paid leave.
Do the regulations require you to memorialize this “agreement” in writing? No. But should you? Oh, heck yeah. Please?
One final note. As my Littler colleagues Ellen McCann, Stephanie Mills-Gallan and Rocio Blanco Garcia point out in our Littler ASAP on this DOL missive, the opinion letter actually gives employers a clearer road map when juggling FMLA and state paid family and medical leave laws. They put it this way:
…the DOL Opinion Letter will help employers navigate the complex issues that arise in determining how employer-provided accrued paid leave integrates with PFML benefits. Many employees want to use accrued paid leave to “top up” partial income replacement to receive 100% of pay. However, many employers find that “tops ups” are administratively burdensome or complicated to calculate. The Opinion Letter provides employers with the ability to decide whether to allow employees on FMLA to use their accruals to top up PFML benefits. However, employers should note that a few state PFML programs allow employees to “top up” benefits even without employer consent so employers should consult with knowledgeable counsel to determine the appropriate approach to take in each state
We will cover this topic, among many others this March at my four-day FMLA & ADA Master Class. Check out the details here and join me for the fun!
Photo credit: Jon Hyman, who has mastered ChatGPT images better than I have.