State Laws on Family Leave

The majority of states now have leave laws, but their provisions differ wildly—leaving a patchwork of protections, benefits, and loopholes that are often confusing to both employers and employees.

1. Choosing Federal or State Protections

If your state also has some incarnation of a family leave law, you are free to seek benefits under the federal FMLA or your state law—whichever law offers you the greatest benefit. If you have a baby one year, you may use the leave allotted you by the state; if you become ill the next year, you may be entitled to benefits guaranteed by the FMLA. However, several states have recently amended their laws to provide that state and federal coverage cannot be piggybacked; you must choose coverage under one law or the other.

2. State Laws

State laws governing family leaves differ greatly as to:

• the size of workplace covered—varying from 4 to 100

• the reasons allowed for time off—some states provide leaves for birth and adoption only; others also provide it for family members’ illnesses; the District of Columbia appears to be among the first to allow leave to care for domestic partners

• who is covered—a number of states specify that an employee must have worked for one employer for a minimum time before being entitled to a leave

• the length of leave allowed

• the length of notice that an employee must give before taking a leave

• whether or not benefits must be continued and at whose expense

• whether or not an employee is entitled to the same or an equivalent position after returning to work—in some states, this is required only if proper advance notice has been given

• how rights to parental leaves are divided when both parents are employed by the same company, and

• how the laws can be enforced.

Several states also provide that parents must be given a certain amount of unpaid leave to attend a child’s school conferences.

On their faces, many state laws are more liberal than the federal law. But many state laws are rife with large loopholes, too. For example, the family leave laws in a number of states provide that an employer is free to replace a worker who has taken leave if the time off would burden the workplace.

3. Antidiscrimination Provisions

Some state laws also forbid workplace discrimination on the basis of gender. In states that have no specific family leave laws, antidiscrimination laws often can be used to establish a right for parents to take time off from work for pregnancy and childbirth.

The antidiscrimination laws of most states include marital status among the factors that may not be used as the basis for work-related discrimination. Some states, such as Alaska, for example, go a step farther, by specifically listing parenthood as an illegal basis for discrimination.

4. Enforcing Your Rights

Antidiscrimination laws often can be applied to such leaves only through slow-moving complaints to the Equal Employment Opportunity Commission or through complex and expensive lawsuits. But, in general, state laws that grant family leaves offer a clear basis for enforcing the right to take such a leave.

But, most often, the most direct and constructive way to exercise your right to take a family leave is to know your rights and to make sure your employer is aware of both your plans and the law well before you take a leave. Nearly all state family leave laws have been enacted recently, and your employer may be sincerely unaware of them.

If you have made your employer aware of your right to take such a leave and the employer refuses to comply, the options available to you will vary with the situation.

• If your problem seems to be merely a matter of disagreement over interpretation of the law, suggest to your employer calling in a mediator or arbitrator to help settle the dispute.
  

• If your state is listed in this chapter as having a specific leave law, you may be able to have a state agency intervene in your case. To find the appropriate state agency, start with the one responsible for overseeing your state’s antidiscrimination law.
  

• If your case involves a violation of Title VII of the Civil Rights Act, you can file a complaint with the Equal Employment Opportunity Commission (EEOC). If the EEOC decides not to take action in your case, you may be able to file a federal lawsuit on your own.

• If your state has no agency to enforce its law, you may be able to file a lawsuit on your own behalf. In some states, those who sue under family leave laws are allowed to collect punitive damages, court fees, and the cost of hiring a lawyer to help.