DOL Opines on Intersection of FMLA with State, Local Leave Laws

What happens when an employee’s leave request triggers both the Family and Medical Leave Act (FMLA) and state or local law? The Wage and Hour Division of the Department of Labor (DOL) attempted to explain in a new opinion letter.

While state or local paid family or medical leave programs are not directly addressed in the FMLA regulations, the same principles apply to such programs as apply to disability plans and workers’ compensation programs, the DOL said.

“First, where an employee takes leave under a state or local paid family or medical leave program, if the leave is covered by the FMLA, it must be designated as FMLA leave and the employee must be given notice of the designation, which should include the amount of leave to be counted against the employee’s FMLA leave entitlement,” the agency wrote.

Second, where an employee—during leave covered by the FMLA—receives compensation from a state or local family or medical leave program, the FMLA substitution provision does not apply to the portion of leave that is compensated.

Because the substitution provision does not apply, neither the employee nor the employer may use the FMLA substitution provision to unilaterally require the concurrent use of employer-provided paid leave during the portion of the leave that is compensated by the state or local program, the DOL said.

“Other than the substitution provision, all of the protections of the FMLA, including its anti-retaliation provisions, apply during the time the state or local paid leave and the FMLA leave run concurrently,” the agency added.

If the employee is receiving compensation through state or local paid family or medical leave that does not fully compensate the employee for their FMLA-covered leave, and the employee also has available employer-provided paid leave, the employer and employee may agree—where state law permits—to use the employee’s employer-provided accrued paid leave to supplement the payments under a state or local leave program.

Further, the agency noted that, if an employee uses a state or local paid family and medical leave program under circumstances which do not qualify as FMLA leave, the employer may not count the leave against the employee’s FMLA leave entitlement.

As with workers’ compensation benefits, 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 the protections of the FMLA, the DOL reminded employers.

“Therefore, if the leave becomes unpaid leave for purposes of the state or local paid family or medical leave program, then the FMLA substitution would apply and the employee would be able to elect, or the employer would be able to require the employee, to substitute employer-provided accrued paid leave consistent with [FMLA regulations],” according to the opinion letter.

To read the DOL’s opinion letter, click .

Why it matters: The DOL’s opinion letter provides valuable guidance for employers, particularly as an increasing number of state and local governments pass legislation or adopt programs that provide paid family and medical leave for employees.