By Barlow, Wayne E.
Personnel Journal , Vol. 72, No. 9
The Family and Medical Leave Act (FMLA) requires covered employers to grant full-time employees a maximum of 12 weeks of unpaid, job-protected leave during a 12-month period for the following reasons:
* To care for a newborn child, a newly adopted child or a child placed with an employee for foster care
* To care for a child, parent or spouse who has a serious health condition
* For an employee's own serious health condition
The act, which went into effect on August 5, 1993, applies to any employer engaged in commerce who employs 50 or more employees. Special rules apply to employers who have collective-bargaining agreements.
Before the FMLA, 34 states and some local governments enacted family-and medical-leave legislation. The state and local laws often are applicable to the same employers who are subject to the FMLA. The U.S. Department of Labor's (DOL) interim final FMLA regulations, issued June 3, 1993, make clear that an employer must comply not only with the FMLA, but also with state and local laws regarding family and medical leave, as well as state and local laws that prohibit discrimination in employment.
Because employer rights and obligations provided by state and local laws vary significantly form each other and from the rights and obligations of the FMLA, they subject employers to a complexity of rules that often appear inconsistent. Although the DOL's regulations address the interplay between FMLA and the state and local statutes to some degree, they don't provide a definitive resolution for coordinating leave policies. Nor do the DOL's regulations fully explain the impact on leave decisions of federal, state and local laws that prohibit discrimination in employment on the basis of race, religion, color, national origin, gender, age or disability.
The issues that arise in coordinating FMLA compliance with that of local and state laws stem from the clause in the act that states: "[n]othing in this Act...shall be construed to modify or affect any Federal or State law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability..."; and "[n]othing in this Act...shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act or any amendment made by this Act."
To make matters worse, no single agency empowered to interpret or enforce a particular statute can give an employer conclusive guidance in complying with other statures. Federal, state and local laws that impact leave policies are enforced by multiple agencies. For example, the U.S. Department of Labor enforces FMLA. The Equal Employment Opportunity Commission (EEOC) enforces and interprets the Americans with Disabilities Act.
WHAT SHOULD EMPLOYERS DO? To comply with the multitude of federal, state and local legislation employers should:
1) Identify all sources of legislation that govern its leave decisions.
2) Identify the differences between all applicable family-leave statutes. Key areas of contrast between the FMLA and state and local laws to be reviewed are:
* Their effective dates
* The purpose for which leave must be granted
* The length of leave that an employer must provide when a state statute provides for a longer duration than the FMLA
* Salary-and benefit-continuation requirements
* Job-restoration rights
* Medical verification.
3) Once the differences between the FMLA and an applicable state or local law are identified, an employer must then determine whether the state law provides a more favorable leave benefit for the employees than the benefit found in the FMLA. If so, an employer must blend the state requirements with those of the FMLA and comply with whichever grants the more favorable leave benefits to employees.
Some suggestions for blending the leave requirements are:
1) REASONS FOR LEAVE. …