How some states are filling in the gaps left by the FMLA
The place to start when addressing a request for medical or sick leave is the federal Family and Medical Leave Act (FMLA). But challenges to application of the FMLA are compounded by what are commonly referred to as mini-FMLAs—state medical leave laws such as the one that exists in Minnesota—and by the increasing number of states that are implementing laws concerning the provision and use of employee sick leave.
Handling leave of absence requests can be one of the most time-consuming and frustrating challenges that human resources professionals face. With federal, state, and local laws regulating employee medical or sick leave, responding to such requests is not only complex, but, if not handled properly, can subject employers to some serious (and potentially expensive) legal risks.
The place to start when addressing a request for medical or sick leave is the federal Family and Medical Leave Act (FMLA). Enacted in 1993, the FMLA applies to all employers who employ 50 or more employees for each working day during 20 or more calendar workweeks in the current or preceding calendar year.1 Even if an employer meets this threshold, however, not all of its employees are eligible for benefits under the FMLA. An eligible employee is an employee who:
(1) has been employed by the employer for at least 12 months (not necessarily consecutive);
(2) has worked at least 1,250 hours during the 12-month period immediately preceding the requested leave; and
(3) is employed at a worksite where the employer employs 50 or more employees within 75 miles of the worksite.2
If an employer is covered by the FMLA and an employee has met the eligibility requirements, that employee is entitled to a total of 12 workweeks of unpaid leave during a 12-month period for, among other reasons, the care of a
parent, spouse, or son or daughter with a serious health condition, or to care for the employee’s own serious health condition if that condition makes the employee unable to perform the functions of his or her position.3 Upon return from FMLA leave, an employee is entitled to be restored to the same position the employee held when the FMLA leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.4
The challenges in applying the FMLA lie in the details: What is considered a “serious health condition,” who is considered “a parent” or “son or daughter,” and what if the condition requires intermittent leave, rather than one large consecutive leave? Ambiguities in the law have been left to the courts to sort out, which has sometimes led to inconsistent interpretations among the circuits.
Challenges to application of the FMLA are compounded by what are commonly referred to as mini-FMLAs, which are state medical leave laws. A number of states have adopted mini-FMLAs containing their own employer and employee eligibility factors and leave amounts, sometimes housed in a single act or law and sometimes covered in multiple separate statutes. States with mini-FMLAs include California, Colorado, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. Employers must abide by both the FMLA and any applicable mini-FMLA. Because some states’ mini-FMLAs impose overlapping (and sometimes conflicting) obligations on employers, employers need to carefully consider both federal and state FMLA laws.
Mini-FMLAs: More than a Mini-Problem
To give you an idea of the range of differences between mini-FMLAs, let’s go over a few examples.
Minnesota: Family and medical leave and pregnancy leave issues are covered by the Minnesota Parenting Leave Act (MPLA). Employers with more than 21 employees are subject to the MPLA and must provide employees with a maximum of 12 weeks of unpaid leave for the birth or adoption of a child or for pregnancy-related health conditions, which can run concurrently with FMLA leave.5 Upon return from MPLA leave, an employee is entitled to return to his or her former position or a comparable position, as with the FMLA.6
California: The California Family Rights Act (CFRA) largely mirrors the FMLA, including with respect to employer and employee eligibility requirements.7 The most noticeable differences include that the CFRA does not cover disability resulting from pregnancy, childbirth, or related medical conditions.8 Leave required for these reasons instead falls within the scope of California’s Pregnancy Disability Leave Act.9 Pregnancy Disability Leave, which applies to all California employers and allows up to four months of leave, may run concurrently with FMLA, but it cannot run concurrently with CFRA leave.10 For example, a CFRA-eligible employee may be entitled to 12 weeks of CFRA leave for the birth of a child after she is no longer disabled by the pregnancy or at the end of four months of pregnancy disability leave, whichever occurs first. For that reason, the maximum possible combined statutory leave for Pregnancy Disability Leave and CFRA due to the birth of a child is four months plus 12 workweeks.
New Jersey: The New Jersey Family Leave Act provides eligible employees up to 12 weeks of leave in a 24-month period for the birth or adoption of a child or the serious health condition of a family member.11 It does not cover an employee’s own serious health condition. In addition to the Family Leave Act, New Jersey has enacted the Paid Family Leave Act. Any entity that employs one or more individuals and pays the individuals at least $1,000 in the current or preceding calendar year is required to provide eligible employees up to six weeks of family leave benefits to care for sick family members or a newborn or newly adopted child.12 Covered employees are eligible for two-thirds of their average weekly wage up to $584 per week.13 Paid family leave is not available for an employee’s own serious health condition.
Wisconsin: Wisconsin’s mini-FMLA strays from the FMLA’s eligibility standards. For an employee to be eligible, the employee must have worked for at least 52 consecutive weeks and worked or been paid for at least 1,000 hours during the preceding 52-week period.14 Wisconsin law applies different protections and benefits for “family leave” and “medical leave.”15 Further, different qualifying reasons for leave have different leave allotments. For example, an eligible employee can take up to six weeks of leave for the birth or adoption of a child, but only two weeks for care for a family member’s serious health condition.16
A cursory review of the wide disparities between these four states makes clear that employers must carefully consider mini-FMLA laws enacted in the states in which their businesses and employees reside. Employers will be responsible for applying both the FMLA and any applicable mini-FMLA, providing employees with the more generous provisions of the two laws whenever there is an inconsistency.
Lest We Forget: Sick Leave Laws
In addition to the benefits provided in the FMLA and applicable mini-FMLAs, an increasing number of states are implementing laws concerning the provision and use of employee sick leave. The issue of whether employers should be required to provide a certain amount of unpaid sick leave or even paid sick leave has been a polarizing issue these past few years. In President Obama’s 2015 State of the Union Address, he highlighted the fact that the United States is the only advanced country on earth that doesn’t guarantee paid sick leave to employees, asking Congress to send him a bill that gives workers an opportunity to earn seven days of paid sick leave. Given the stagnant progress on this issue at the federal level, some state and local legislators have taken it upon themselves to act.
Let’s see how our four sample states have handled sick leaves.
Minnesota: While no Minnesota law requires private sector employers to provide employees with paid or unpaid sick leave, Minnesota’s Sick or Injured Child Care Leave Act does regulate how existing sick leave policies can be used. A Minnesota employer with 21 or more employees must allow eligible employees to use their personal sick leave benefits for absences due to illness or injury of the employee’s family members, as defined in the Act.17 To be eligible, the employee must have worked for at least 12 consecutive months immediately preceding the request and must work an average number of hours per week equal to one-half the full-time equivalent position.18 While paid sick leave bills have been proposed in the Minnesota Legislature, no such bill has yet been enacted.
California: California has been at the forefront of the paid sick leave trend. In 2007, San Francisco became the first city to mandate paid sick leave.19 In 2014, California lawmakers caused quite a stir by enacting the Healthy Workplaces, Healthy Families Act, which provides eligible employees with paid sick leave. Paid sick leave under this law, which was effective as of this past July, is available to the majority of California workers: Any employee who has worked in California for 30 or more days within a year from the beginning of his employment is considered eligible.20 Paid sick leave accrues at the rate of 1 hour per every 30 hours worked and is to be paid out at the employee’s regular wage rate.21 As an alternative to this accrual method, employers can choose to give covered employees at least three days (24 hours) of paid sick leave at the beginning of the each year.22 There are two qualifying reasons for paid sick leave use: (1) an employee’s own or a family member’s health condition or care; and (2) time needed to seek aid, treatment, or other assistance when an employee has been the victim of domestic violence, sexual assault, or stalking.23 Complications with carry-overs, accrual caps, grandfathered policies, and application to unlimited vacation policies under the new law have left employers with a number of unanswered questions
(and likely headaches) on lawful application of this innovative new law. Employers in California must comply with both the state paid sick leave law and any local ordinance enacted on the topic, such as those in San Francisco, Oakland, and Emeryville.
New Jersey: The state of New Jersey does not require private sector employers to provide employees with paid or unpaid sick leave. However, like California, a number of cities and towns within the state have passed local ordinances requiring that employers within their municipalities provide employees with paid sick leave, including Jersey City, Newark, Passaic, East Orange, Paterson, Irvington, Trenton, and Montclair.24 These ordinances apply to all private employers regardless of size, but the amount of required paid sick leave time varies. While the New Jersey Legislature has considered paid sick leave legislation, no paid sick leave laws have yet been passed.
Wisconsin: The people of Wisconsin have had a very different experience with paid sick leave laws than those in California and New Jersey. In 2008, voters in Milwaukee approved a mandatory paid sick leave law. The law received immediate opposition from employers and business groups and was brought before Wisconsin courts. In 2011, the Wisconsin Legislature passed a law that nullified the Milwaukee ordinance and prohibited local municipalities from passing paid sick leave ordinances.25 Wisconsin’s experience is not unique: A number of other state legislatures have passed measures banning municipalities from passing paid sick leave laws, including Georgia, North Carolina, Florida, and Arizona.
Employers now face a moving target. Medical and sick leaves pose a particularly complicated challenge for employers with employees in multiple states and in multiple municipalities within those states. As the popularity of paid sick leave rises among the American population, the evolution of sick leave laws will only continue to snowball. Personnel responding to a medical or sick leave request will do well to track the progress of newly proposed laws that may apply to their employees and to become intimately familiar with their provisions.
JoLynn Markison is a 2006 graduate of William Mitchell College of Law, Jo is an attorney in Dorsey’s Labor & Employment Group. Jo represents large and small corporations in employment litigation involving race, gender, national origin, religion, disability, and age retaliation and discrimination; sexual harassment; and wage and hour claims. In addition to litigation, Jo counsels corporations on employment-related issues, including FMLA, discipline and discharge decisions, and policy creation and implementation.
Bobbi Leonard is an attorney with Dorsey & Whitney’s Labor and Employment practice group. She advises employers with respect to all manner of issues, from drafting and revising corporate policies to representing employers in complex and class-action litigation.
1 29 C.F.R. §825.104(a)
2 29 C.F.R. §§825.110(a)(1)-(3)(b)(1); 29 U.S.C. § 2611(2).
3 29 C.F.R. §825.200(a)(1)-(5).
4 29 C.F.R. §825.214(a).
5 Minn. Stat. §181.941, subd. 1.
6 Minn. Stat. §181.942.
7 Cal. Code Regs. tit 2, §7297.0(d)-(e).
8 See Cal. Code Regs. tit 2, §7097.4.
9 Cal. Gov’t Code §12945.
10 Cal. Code Regs. tit. 2, §7297.9(a).
11 N.J.S.A. 34:11B-1(i).
12 N.J.S.A. 43-21-27(o).
13 N.J.S.A. 43-21-29(b).
14 Wis. Stat. §103.10(2)(c).
15 See Wis. Stat. §103.10(3)-(4).
16 Wis. Stat. §103.10(a)1-2.
17 Minn. Stat. §181.9413.
18 Minn. Stat. §181.940, subd. 2.
19 S.F. Administrative Code Ch. 12W.
20 Cal. Lab. Code §245 (a).
21 Cal. Lab. Code §246 (b).
22 Cal. Lab. Code §246 (d).
23 Cal. Lab. Code §246.5 (a)(1)-(2).
24 See e.g. Ordinance of Jersey City, N.J. No. 13.097; Ordinance of the City of Newark, N.J. No. 6PSF-A(S); City of Trenton, N.J. Ordinance No. 14-45.
25 See generally Anne M. Carroll and Marry Ellen Simonson, “Sick leave law: The view from Wisconsin and Arizona,” Inside Counsel, October 29, 2014, www.insidecounsel.com/2014/10/29/sick-leave-law-the-view-from-wisconsin-and-arizona.