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.

The Family and Medical Leave Act

The most sweeping federal law to help workers with the precarious balance between job and family is the Family and Medical Leave Act, or FMLA. (29 U.S.C. §§ 2601 and following.) Under the FMLA, an employee is eligible for up to 12 weeks of unpaid leave during a year’s time for the birth or adoption of a child, family health needs, or the employee’s own health needs.

The employer must not only allow an employee to take the leave, but must allow the employee to return to the same or a similar position to the one he or she held before it. And, during the leave, the employer must continue to make the same benefit contributions, such as paying insurance policy premiums, as the employee was receiving before going on leave. However, the FMLA does not require that employers pay any benefits that are not generally provided to employees—and seniority and pension benefits need not accrue during an employee’s leave.

Employers who violate the Act, including its provisions against retaliating against those who take advantage of its protections, may be required to pay back pay, damages, attorneys’ and expert witnesses’ fees—and, perhaps more important, for the cost of up to 12 weeks of caring for a child, spouse, or parent.

1. Who Is Covered

The FMLA applies to all private and public employers with 50 or more employees—an estimated one-half of the workforce.

To take advantage of this law, an employee must have:

• been employed at the same workplace for a year or more, and

• worked at least 1,250 hours—or about 24 hours a week—during the year preceding the leave.

2. Restrictions on Coverage

Anticipating that some of the leave provisions in the FMLA might cause a hardship for smaller and some specialized employers, Congress included a number of exceptions to its coverage. Some of the exceptions sound rather harsh and would likely result in dividing some workplaces—providing some employees with benefits that others are blanketly denied. So, to maintain morale and encourage company loyalty, many employers opt to adopt uniform standards for all employees rather than adhere slavishly to the exceptions allowed.

a. 50 Employees Within 75 Miles

Companies with fewer than 50 employees within a 75-mile radius are exempt from the FMLA. This means that small regional offices of even the largest companies may be exempt from the law’s requirements. However, the magic number of 50, for purposes of the FMLA, is computed by adding up all the employees on the payroll, so that those already on leave and those who work erratic schedules are tallied into the final count.

b. The Highest-paid 10%

The law allows companies to exempt the highest-paid 10% of their employees. This exception recognizes the theory that, in many companies, the highest-paid employees are the executives, the leaders, and the managers—the ones who must be around to keep workplaces running smoothly. Employers may choose to provide these employees with unpaid leave, however, and many do—recognizing that the standard is broader than the reality of most workplaces. For example, in a smallish workplace of 100 employees, it is highly unlikely that ten workers will be deemed top-level executives.

c. Teachers and Instructors

Those who work as schoolteachers or instructors are partially exempt from the FMLA—that is, they may be restricted from taking their unpaid leave until the end of a teaching period, commonly a quarter or semester, to avoid disrupting the continuity of the classroom. Teaching assistants and school staff, however, are fully covered under the FMLA.

d. Two Spouses, One Employer

Unless their need for leave is due to a personal medical problem, spouses who work for the same employer must aggregate their 12 weeks of leave time—that is, together, they are entitled to a total of 12 weeks off.

Congress defends this exception in the FMLA as a way to counter an employer’s unwillingness to hire a married couple. In reality, it forces a couple to choose who should be the caregiver in the family. Note, however, that because of the loophole allowing time off for medical problems, if a woman qualifies for a pregnancy leave, her husband may be entitled to family leave to care for her.

3. Reasons for Time Off

The FMLA established what was long awaited in the workplace: a federal standard guaranteeing many workers the right to leave for the birth or adoption of a child and to care for their own or a family member’s serious health condition.

a. Birth, Adoption, or Foster Care

The FMLA states that all covered employees must be given 12 weeks of unpaid leave for the birth, adoption, or foster placement of a child, as long as that leave is taken within a year of the child’s arrival. Also, if the leave is for a new child, it must be taken in a 12-week chunk (unlike a leave for medical problems, which may be scheduled more flexibly).

b. Health Problems

The law is intended to allow workers to provide adequate care for children under 18 who are ill or injured and for children 18 and older who cannot take care of themselves because of a physical or mental disability. Leave is available to care for an employee’s son or daughter—which is broadly defined to include biological, adopted, or foster children; stepchildren; and legal wards. Also covered are children for whom employees stand in the place of parents—such as cases in which a grandparent, aunt, or uncle has complete caretaking responsibilities.

The FMLA also provides for time off for health problems—physical and psychological—that affect either the employee or his or her spouse or parents. The required care need only limit the employee’s ability to work or the employee’s family member’s ability to carry on with daily activities.

In the FMLA, the definition of spouse is limited to “a husband or wife, as the case may be”—overtly banning unmarried partners from the Act’s coverage. In-laws are not included in the definition of parents.

The FMLA’s definition of a medical condition entitling an employee to take a leave is quite liberal. It includes, for example, time off to care for a parent or spouse who has Alzheimer’s disease or clinical depression, has suffered a stroke, is recovering from major surgery, or is in the final stages of a terminal disease. It also covers employees who need time off to recover from the side effects of a medical treatment—including chemotherapy or radiation treatments.

However, the employee’s or family member’s health condition or medical treatment must require either an overnight stay in the hospital or a three-day absence from work. For example, a one-time health problem that is expected to require a short recovery period, such as orthodontic treatments, is not covered under the FMLA.

Also excluded are ailments not deemed to be serious health conditions—colds, flu, earaches, upset stomachs, minor ulcers, headaches other than migraines, and routine dental visits. Regimens of over-the-counter medications, bed rest, fluids, and exercise popularly ordered by doctors are not within the law’s contemplation. Nor does the law cover requests for time off for routine physical, eye, or dental exams—except when required to diagnose a serious illness. In fashioning the law, Congress presumed, rightly or wrongly, that most workplace sick days or personal leave policies would be sufficient to cover these situations.

4. Penalties for Retaliation

By passing the FMLA, Congress intended to signal that employers must foster employees’ needs to preserve both family and job. As in other workplace laws prohibiting unfair practices, the FMLA prohibits employers from demoting or firing an employee solely because he or she took a legally sanctioned leave.

The law also provides that an employer may not use either a carrot or a stick in handling leave requests. That is, an employee may not be promised a raise or promotion as an inducement not to take a leave; nor may an employee be denied a raise or promotion because of taking a leave.

5. Returning to Work

When you return to work after taking a family leave, the FMLA requires that you be returned to your old position or to an equivalent one.

This is a strict requirement and, according to the Department of Labor, the single provision employers violate most often. Congress has intimated that it is not enough that the position to which you are returned be “comparable” or “similar.” It has stated that the “terms, conditions, and privileges”—including the security of the position within the company—must be the same as the previous position.

6. If You Do Not Return to Work

An interesting twist in the law provides that if an employee does not return to work after an FMLA-sanctioned leave, the employer may seek return of the benefits paid while he or she was away.

Although it has not yet been questioned in court, this recapture provision seems to be a mistake in the law, as it enables employers to set off benefit amounts from an employee’s final paycheck or from a severance award. However, the setoff most often involves health insurance premiums, which the employer usually pays directly to the insurer.

7. Enforcing Your Rights

You must file a claim under the FMLA within two years after an employer violates the Act—or within three years if the violation is willful. Since the law is fairly new, it is still unclear what conduct will be considered willful, but retaliation is likely to be such an offense.

As mentioned, employers found to violate the FMLA may be liable for a number of costs and benefits, including:

• wages, salary, employment benefits, or other compensation an employee has lost

• the cost of providing up to 12 weeks of care for a baby or ill family member

• reasonable attorneys’ and expert witness fees, and

• interest on the amounts described above.

The employee may also win the right to be promoted or reinstated to a particular job.

The FMLA is now enforced by the U.S. Department of Labor, much the same as the Fair Labor Standards Act, which controls work hours and wages. If you have specific questions about the FMLA, contact the Department of Labor at 866-487-2365. Or check the materials on the Department’s website, at www.dol.gov.