When taking FMLA leave, employees should first be sure they and their employers are covered by the act. Next, employees should consult with a local attorney to determine how any state family-leave laws affect their rights under the FMLA, which is a federal law. State laws sometimes provide time off or benefits not offered under the act. State family-leave statutes also sometimes provide leave for employees not covered by the act.
According to the Labor Department, covered employers must follow the law of greater benefit to the employee, whether state or federal. Employees and employers must be aware that states often have statutes that could affect employee leave, such as those pertaining to pregnancy, attendance at school activities, organ or blood marrow donations, workers’ compensation and disability.
The Labor Department offers a comparison of the key provisions of 11 states’ family-leave laws, along with the District of Columbia, and those of the FMLA, updated in 2007.
FMLA leave after state-approved leave
Q: My employer is fully aware that I recently suffered a serious physical injury while performing part of my job. I’ve already taken several weeks off under my state’s workers’ compensation laws and would like to take off more time under the FMLA. Am I still entitled to a full 12 weeks of FMLA leave since I haven’t taken any other FMLA leave during the past 12 months?
A: You will need to discuss this further with your employer and possibly a local attorney. Under certain circumstances, an employer can subtract time from your FMLA leave under the workers’ compensation laws.
The FMLA requires an employer to provide only unpaid leave; however, the law allows either workers to elect or employers to require that accrued paid time off (such as sick leave or vacation time) be taken as part of the 12-week FMLA leave period. The worker must receive proper notification at the beginning of the leave period if any paid time off will be counted against the worker’s FMLA leave entitlement.
Last updated: Sept. 29, 2008