FMLA, CFRA, NPLA, ADA, FEHA, NYPFL, SFPPLO. The alphabet soup of leave laws with which employers must comply is enough to make the heads of even the most seasoned HR professionals and in-house counsel spin. With an increasing number of municipalities jumping into the game, the number of laws keeps growing. Realistically, mere mortals cannot memorize the details of each law, and, luckily, it is not necessary as long as they know how to spot issues and when to seek counsel. Today, we address three key topics to help employers stay ahead of their leave of absence obligations: (1) recognizing leave issues buried within an employee’s questions, statements, or conduct; (2) keeping abreast of the existence of state and local laws in addition to the better-known federal laws; and (3) understanding the difference between the right to protected time off and the availability of full or partial wage replacement during time off.
Recognizing Leave Issues
Employee comments that might set off alarm bells for an experienced HR professional or in-house attorney may easily be overlooked by the front-line supervisors who have the most contact with employees. It is crucial that supervisors and other people responsible for HR compliance be able to spot these issues.
Employee rights to time off generally derive from the following sources:
- State and local paid sick leave laws;
- The federal Family and Medical Leave Act (FMLA) and state and local equivalents;
- California’s Pregnancy Disability Leave law (PDL) and similar laws in other jurisdictions;
- Federal and state military leaves;
- Miscellaneous state leave laws protecting time off for jury duty, voting, witness duty, crime victims (domestic violence, sexual assault, stalking), emergency responders, school activities, organ donation, etc.;
- Paid vacation (not mandated by law, but employer must comply with its own policies); and
- Time off beyond whatever the law or company policy mandates as a reasonable accommodation under the Americans with Disabilities Act (ADA), Section 503 of the Rehabilitation Act, and state equivalents.
Attorneys and HR professionals may think about leave issues in terms of these statutes, but the people who often have the most regular contact with employees—front line supervisors—do not typically think about employee issues in these legal buckets. It is therefore important that supervisors and other company employees responsible for HR compliance be sensitized to an employee’s statements and actions that might implicate his or her right to leave. More important than being able to distinguish among the finer points of PDL, FMLA, and ADA is the ability to recognize the following kinds of employee statements as possible triggers of a right to a job protected leave of absence:
- “My wife was wounded serving in Iraq and will be stuck in bed for the next two months.” (FMLA and state military leave laws)
- “Ugh. I think I have the flu.” (Federal FMLA and state law equivalents if the illness is sufficiently severe)
- “My boyfriend hit me and I need Thursday morning off to go to court to get a restraining order.” (Domestic violence leave under state law)
- “My son has been suspended from school, and the principal wants to meet with me next week.” (School leave under state law)
- “The CIA is listening to my thoughts through my fillings.” (Time off under the FMLA and state law equivalents for mental disability; reasonable accommodation under the ADA and state law equivalents)
- “I’m sorry I’m late for work again. I forgot to refill my Ritalin prescription.” (Reasonable accommodation under the ADA and state law equivalents for ADHD)
- “I realize I’ve used up all my FMLA time due to my surgery, but my doctor says I’ll be as good as new if I can just have a few more weeks off.” (Reasonable accommodation under the ADA and state law equivalents)
The time and resources devoted to training supervisors how to spot these issues will be time and resources well spent. Not only will they help avoid lawsuits, but they may prevent morale problems and bad publicity.
State and Local Regulation of Leaves From Work
California employers should know by now that California mandates paid sick leave, but some employers might not be aware that, as of January 2019, seven California cities have their own paid sick leave laws: Berkeley, Emeryville, Los Angeles, Oakland, San Diego, San Francisco, and Santa Monica. Some of these laws conflict with California’s law and with each other. For employers with employees in other states, things get even more complicated. For example, the state of New York does not have a paid sick leave law, but New York City does. Nearby New Jersey has a state paid sick leave law, but no local laws which would be preempted under the state law.
Family and medical leave laws pose similar issues for employers. California employers with 50 or more employees have long had to comply with the federal FMLA and the California Family Rights Act (CFRA). Since January 1, 2018, smaller California employers with 20 or more employees must comply with the New Parent Leave Act (NPLA), which allows eligible employees to take up to 12 weeks of unpaid, job protected leave to bond with a new child. Like California, the state of New York has its own version of the FMLA—the New York Paid Family Leave Benefits Law (NYPFL), and New Jersey has the New Jersey Family Leave Act (NJFLA). It is not only states and cities that traditionally have more favorable laws for employees that are getting into the act. Tennessee, for example, does not have a state equivalent to the FMLA, but has the Tennessee Maternity Leave Act (TMLA), which provides leave for qualified individuals for adoption, pregnancy, childbirth, and infant nursing.
In almost every case where multiple laws apply to the same employee, the employer must comply with the law that offers the most protection to the employee. To stay compliant, employers must be vigilant in keeping abreast of federal, state, and local laws in every location where the company has employees. This obligation can be especially tricky for companies with a smattering of employees spread throughout the country. Companies that have one sales representative in each state or region can face compliance challenges as can employers that permit employees to work remotely from a city or state where the company has no offices or other employees.
Some employers minimize the compliance burden by adopting company-wide policies applicable to all employees. This approach requires the employer to adopt a policy that complies with the most employee-friendly leave laws applicable at any company location. Although doing so may cost the company more money, in return the employer gets consistency and avoids morale problems that might arise when employees in one city learn that a colleague working at a facility a few miles away receives more paid sick leave or baby bonding leave simply because of geography. Even companies that go this route must remain vigilant. Given the pace at which state and local laws are being enacted, today’s most protective law can quickly become tomorrow’s has-been.
Distinguishing Between Protected Time Off and Wage Replacement
Anyone responsible for administering leaves of absence should be mindful of these basic rules:
- Leave Entitlement ≠ Entitlement to Be Paid.
- Entitlement to Be Paid ≠ Leave Entitlement.
While these rules seem straightforward, employers sometimes confuse laws that guarantee employees time away from work with laws or programs that offer full or partial wage replacement while an employee is off work.
California’s Paid Family Leave (PFL) is one of the bigger culprits when it comes to confusion. PFL provides up to six weeks of partial wage replacement to an eligible employee who needs time off to provide care for a seriously ill family member or bond with a new child. PFL is a form of wage replacement funded through a payroll tax paid by employees, but it does not entitle employees to any time off or reinstatement. In fact, a person need not even be employed to receive PFL so long as she or he is actively looking for work at the time the person needs to care for a family member.
The state of New York, by contrast, has taken a different approach than California with New York’s Paid Family Leave Benefits Law (NYPFL). NYPFL applies to all private employers that employ one or more employees and: (i) guarantees time off for reasons parallel to those under the FMLA; and (ii) provides partial wage replacement during leave. The leave is funded by employee payroll taxes and is paid through Paid Family Leave insurance that the employer must secure.
An Illustration of the Myriad Laws in Action
Consider a pregnant woman, Wilma, who works as the controller of the Acme Company, which has 15 employees in California. Wilma becomes disabled and is ordered to bed rest for the last two months of her pregnancy. California’s Pregnancy Disability Leave law (PDL) guarantees her up to four months off work due to the disability and the right to be reinstated to her position (or a comparable position if her original position no longer exists) upon end of the disability. Wilma’s job is safe despite the small size of the Acme Company and her extended time off. PDL does not, however, entitle Wilma to any pay during her disability leave. Wilma will, however, likely be eligible for partial wage replacement through California’s State Disability Insurance (SDI) (funded through payroll deductions) after a one-week waiting period. Wilma may use accrued paid sick leave or possibly accrued vacation, during the waiting period.
Wilma delivers the baby through a normal vaginal delivery and her doctor certifies her as disabled under PDL for six weeks after the birth. Wilma then decides she wants a few months of maternity leave to bond with her new baby. Wilma may be entitled to Paid Family Leave (PFL) to partially cover her wages during maternity leave, but the Acme Company is not legally obligated to provide Wilma with any time off for baby bonding. With only 15 employees, the Acme Company is not covered by the CFRA or NPLA, which guarantees employees of larger employers up to 12 weeks off for baby bonding after the end of any pregnancy disability. The Acme Company, with only 15 employees, may voluntarily offer employees time off for baby bonding, or the company may allow Wilma to use accrued vacation, but despite the availability of PFL to pay for time off with the baby, Wilma has no protected right to time off for baby bonding.
If the Acme Company were located in New York instead of California, Wilma would be entitled to guaranteed time off for baby bonding and partial wage replacement under NYPFL. On the other hand, New York does not have an equivalent to California’s PDL. Unlike in California, the Acme Company in New York would not have been required to hold open Wilma’s job for the three and a half months she was disabled due to pregnancy and childbirth. Acme Company might have decided that it could not function without a controller for more than three months and lawfully terminated Wilma’s employment before the baby was born.
The patchwork of leave laws throughout the country creates many traps for the unwary. Employers of all sizes in all states are well-served by ensuring that HR professionals and supervisors are trained and sensitive to the issues. It is also crucial to stay abreast of the quickly expanding universe of laws and to consider ways of mitigating the compliance burden, such as adopting uniform company policies in all locations.
 29 U.S.C. § 2601 et seq.
 Cal. Code Regs., tit.2, § 11042
 See e.g., the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq.; FMLA, 29 U.S.C. §§2612(a)(1)(E), 2612(a)(3); Cal. Military & Vet. Code § 395.10.
 California Labor Code §§ 230-230.8.
 42 U.S.C. § 12101; see also, e.g., California Fair Employment and Housing Act, Cal. Gov. Code § 12940; New York State Human Rights Law, Article 15, § 290 et seq.
 Healthy Workplaces, Healthy Families Act of 2014, Cal. Labor Code §245 et seq.; Berkeley Paid Sick Leave Ordinance, Berkeley Municipal Code, Ch. 13.100; Emeryville Minimum Wage and Paid Sick Leave Ordinance, § 5-37.03; Los Angeles Minimum Wage Ordinance, §187.04; Oakland Paid Sick Leave ordinance, Oakland Code of Ordinances, § 5.92.030; San Diego Earned Sick Leave and Minimum Wage Ordinance, San Diego Municipal Code § 39.0101; San Francisco Paid Sick Leave Ordinance, San Francisco Administrative Code Ch. 12W; Santa Monica Minimum Wage Ordinance, Santa Monica Municipal Code Ch. 4.62.
 New York City Earned Sick and Safe Time Act, N.Y.C. Admin. Code §§ 20-911 to 20-924.
 New Jersey Earned Sick Leave, N.J.S.A. 34:11D-1.
 California Family Rights Act (CFRA), Cal. Gov. Code § 12945.2
 California New Parent Leave Act (NPLA), Cal. Gov. Code § 12945.6.
 New York Paid Family Leave Benefits Law, final regulations, tit. 12 N.Y.C.C.R. Part 380 et seq.
 New Jersey Family Leave Act, N.J.S.A. 34:11B-16
 Tennessee Maternity Leave Act, Tenn. Code Ann. 4-21-408.
 Cal. Unemp. Ins. Code § 3300 et seq.
 To complicate things a bit more, employers in San Francisco with 20 or more employees must supplement employees’ PFL by the amount needed to true up the employee to 100% of his or her regular salary. See San Francisco Paid Parental Leave Ordinance, San Francisco Police Code 33H (2016).
 Cal. Unemp. Ins. Code § 2601 et seq.