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Employment Law Alert: DOL Opinion Letter Provides Guidance on Interaction of State and Federal Family and Medical Leave Laws

From the Firm

DOL Opinion Letter Provides Guidance on Interaction of State and Federal Family and Medical Leave Laws

Are you confused about how the new state paid family leave laws co-exist with federal FMLA? You are not alone—it’s anything but straightforward. The DOL recently issued an opinion letter to give us a little guidance.

Major takeaways:

  • Where an employee takes leave under a state or local paid family or medical leave program, and the leave is also covered by the FMLA, the leave must be designated as FMLA leave and the employee must be given notice of the designation including the amount of leave to be counted against FMLA leave entitlement.
  • Where an employee is on leave covered by the FMLA and is receiving compensation from a state/local family and/or medical leave program, the employer cannot force the employee to exhaust any employer-provided paid leave at the same time. Employees and their employers can agree, however, that the employee will use their employer-provided benefits to top-off any state/local leave program benefits so that the employee is receiving benefits up to 100% of their usual pay. BUT- the employee and employer cannot agree to the top-off arrangement unless the state or local paid family or medical leave program permits the use of accrued paid leave to run concurrently with the state’s paid family or medical leave.
  • If an employee’s leave under a state or local paid family or medical leave program ends before the employee has exhausted the full FMLA leave entitlement, the employee is still entitled to their FMLA protections. The substitution requirement would then apply and the employer may require the employee to substitute their unpaid FMLA leave with employer-provided paid leave.
  • Qualifying leave under a state or local paid family and medical leave program that is not qualified leave under the FMLA must not be counted against an employee’s FMLA leave entitlement.

Whew! It’s a lot. And if you are thinking that it is time to update your leave policies to make sure they are in compliance with all of these laws, we can help with that.

MORE INFORMATION

The contents of this Alert are for informational purposes only and do not constitute legal advice. If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work or a member of the Shulman Rogers Employment and Labor Law Group.

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