Understanding how state PFL laws can lead to leave stacking
Leave “stacking” is a principle that leave administrators and HR professionals should be familiar with. “Stacking” refers to a scenario where an employee can exhaust their leave rights under one law but then begin a new leave under another law. Leave stacking can happen because the FMLA, ADA, and state laws provide for leave under different circumstances and do not always run concurrently.
Background
To understand how leave stacking can happen, it’s helpful to know the landscape of leave laws in the United States.
The United States uses a federal system. The U.S. government can pass laws that apply throughout the country and states can pass laws that apply in their jurisdiction.
The FMLA. The Family and Medical Leave Act (“FMLA”) is a federal law that allows eligible employees working at covered employers to take job-protected leave from work for certain qualifying reasons. Private employers with 50 or more employees are covered by the FMLA. Employees become eligible to use FMLA leave once they have worked for twelve months, 1,250 hours in the prior twelve months, and if they are working at a worksite with 50 or more employees within a 75-mile radius. If an employer is covered and an employee is eligible, an employee can take FMLA leave for a few different qualifying reasons:
Bonding leave to spend time with a child in the 12 months after the 12 months after birth, placement in foster care, or adoption.
Leave because the employee is unable to work due to a serious health condition.
Leave to care for a family member or covered service member with a serious health condition.
Leave due to qualifying exigencies associated with military service.
State laws. States can pass their own laws that provide leave rights. Some states have passed laws that provide leave, on a paid an unpaid basis, for reasons similar to those provided under the FMLA. State laws similar to the FMLA are known as “mini-FMLA ” statutes. State laws that provide leave for bonding and other family reasons are commonly called paid family leave (PFL) laws.
How laws interact. The FMLA does not preempt or supplant state laws in any way. States are free to pass laws that provide greater benefits than the FMLA.
If an FMLA-eligible employee takes leave for a reason that is covered by both the FMLA and a state law, then the leave entitlements can be exhausted at the same time. This is known as leaves running "concurrently.”
However, if an employee takes leave for a reason that is covered only by state law or the FMLA — and n both — then the leave entitlements will not run concurrently. This creates the possibility of leave stacking.
What is leave stacking?
Leave stacking occurs when an employee takes leave under one legal entitlement followed by another leave under another legal entitlement.
Leave stacking can happen when state and federal laws provide different qualifying reasons for leave. For example, the California Family Rights Act provides up to 12 weeks of leave for an employee in California to care for a sibling with a serious health condition. Under the FMLA, that is not a qualifying reason for leave. The FMLA only provides leave for an employee to care for a parent, child, or spouse with a serious health condition. So, if an employee takes 12 weeks off under the CFRA to care for a sibling, the employee could potentially qualify for another 12 weeks off for an FMLA-qualifying reason, such as caring for a qualifying family member (parent, child, or spouse), an incapacity due to the employee’s own serious health condition, or to bond with a newborn within a year of the birth.
Leave stacking also can occur when an employee becomes eligible for leave under a state law before the employee becomes eligible for leave under the FMLA. For example, in New York, an employee is eligible for up to 12 weeks state-funded paid family leave after 180 days of employment with an employer. An employee could take paid time off to bond with a child after 6 months of employment. Then, once the employee has worked for the employer for a year, the employee would become eligible for FMLA and could take another 12 unpaid weeks off within a year of the child’s birth. By stacking leave entitlements, employees may be able to take more time away from work than an employer contemplated or expected.
Understanding stacking
Leave stacking may be rare, but it can be disruptive to operations. An employer may need to prepare for an employee to be away from work for more than 6 months on a job-protected leave. (And, there is always the risk that the employer may hold the job open for those six months only for the employee not to return.)
Employers can use a few strategies to mitigate the impact of leave stacking:
Be aware of the circumstances when stacking could occur.
Ensure policies say that, whenever possible, leave entitlements will run concurrently. That way, if an employee qualifies for both FMLA leave and leave under a state law, the leave rights will be exhausted at the same time.
If your company provides leave that is even more generous than the FMLA and state law, consider explaining that your policies are not intended to comply and to provide the amount of leave available under applicable legal entitlements.
Leave stacking is rare, but can happen. Leave professionals should be aware of the circumstances when it can and cannot occur so they can manage multiple leave entitlements properly.
