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How Much FMLA or Paid Leave Do I Get?

October 12, 2016

How much time off should a person get after having a child? What is the employer responsibility? These questions have been making headlines all year, with jurisdictions grappling if and how to update their laws.

On October 18 Carla Brown of Charlson Bredehoft Cohen & Brown and Susan Carnell of Lorenger & Carnell PLLC, will talk about issues surrounding the Family Medical Leave Act and paid leave statutes at the D.C. Bar Continuing Legal Education Program's annual "Changing Currents in Employment Law" course.

Brown sat down with the D.C. Bar to give us a preview of this popular course and explore the challenges facing employers.

Tell us about your background and practice.

Carla Brown, employment law attorney at Charlson Bredehoft Cohen & Brown.I am a plaintiff's side employment attorney, focusing mainly on contractual matters, including the negotiation and review of severance agreements, covenants not to compete, and employment agreements. I also counsel employees who are subjected to workplace harassment, discrimination, and retaliation.

What do you expect to cover in your panel at this year's "Changing Currents"?

Susan Carnell and I will be discussing the current state of the various paid leave statutes in the D.C., Virginia, and Maryland regions and how each state law interacts with the current federal law. For example, the federal FMLA does not supersede any state or local law that provides greater protection. Further, employees need not designate whether they are taking leave under FMLA or state law. If both statutory regimes are applicable, employers must comply with both. If only one law is applicable, then the employer need only comply with the law under which it is covered. We will also be discussing briefly the new paid leave statutes that some states such as California, and more locally, D.C. have been proposing.

What are some recent trends that you have noticed in this field?

I think people on both sides are becoming more aware of an employee's options when it comes to leave and that just because an employee needs to take some extended time off, doesn't mean their job is a lost cause. The Obama Administration has brought visibility to paid leave time and while that might not be a financial option for many employers or states, it has moved the needle on the conversation of taking your statutorily protected leave.

Paid leave statutes vary with each state. Can you give us an overview of the states that provide the most favorable paid leave statutes to employees?

Currently, California, New Jersey, and Rhode Island are the only states to offer paid family and medical leave. New York plans to institute a paid family and medical leave program starting in 2018.

  • California offers six weeks of leave for care for new child (birth, adoption, foster) and care for family member with serious health condition or 52 weeks to care for own disability, which includes pregnancy. Employees can earn up to 55 percent of their weekly wage up to a maximum of $1,129 per week.
  • New Jersey offers six weeks of leave for care for new child (birth, adoption, foster) and care for family member with serious health condition or 26 weeks to care for own disability, which includes pregnancy. Employees can earn up to 66 percent of their weekly wage up to a maximum of $615 per week.
  • Rhode Island offers four weeks of leave for care for new child (birth, adoption, foster) and care for family member with serious health condition or 30 weeks to care for own disability. Employees can earn up to 4.62 percent of wages paid during the highest quarter of worker's base period, up to $795 per week.

Locally, D.C. has the most generous leave statute out of D.C., Maryland, and Virginia.

  • D.C.'s FMLA allows for 16 weeks of leave to care for the employee's health condition, a serious health condition of a family member, the birth of a child, or the placement of a child with the employee through adoption or foster care.
  • Maryland has the Parental Leave Act, which does not provide extra protections for medical leave but does allow six weeks of unpaid leave in the event of the birth of the employee's child or placement of a child with the employee for adoption or foster care.
  • Virginia has not adopted a state-level family or medical leave statute. As such, the federal FMLA, where applicable, is the sole source of family and medical leave available to employees in Virginia.

What protections does an employee have when taking paid leave?

Under the federal FMLA, an eligible employee of a covered employer may take leave for up to 12 workweeks during any 12-month period for any of the covered reasons. Typically, FMLA protects the:

  • Employee's job when the employee returns. For the most part, FMLA requires an employer to restore the employee the position he held at the time leave commenced or to a position equivalent to that which he held at the time leave commenced, including equivalent employment benefits, pay, seniority, and other terms and conditions of employment.
  • Employer from interfering with the taking of such leave.
  • Employee from discrimination against employees for exercising their leave rights.
  • Employer from retaliating against the employee for making any complaints, or participating in any investigation, regarding the rights protected under the FMLA.
  • Employee's continued coverage under any group health plan and may not lose employment benefits accrued prior to taking leave during a protected leave.

As a practical matter, what advice would you give an employer who has an employee going out on an extended leave?

Communication is key. If an employee requests FMLA leave or an employer knows that leave may be for FMLA, it must notify the employee of her eligibility and rights and responsibilities under the FMLA, including whether certification from the employee's medical provider is required. If the employee has accrued paid leave, the employer may elect to substitute the unpaid leave time for paid leave time out of the employee's accrued time. If the employer chooses to do this, the employer must also inform the employee whether paid leave will be substituted for unpaid FMLA leave.

If the duration of leave is known, the employer must inform the employee of how much time will be counted against her entitled FMLA leave. If the duration of leave is unknown, the employer must provide updates to the employee, upon the employee's request (but not more often than 30 days) of how much leave will be counted against FMLA entitled leave.

Importantly, the employer should be as proactive as possible in ensuring the role of the employee is covered during the adequate leave time, but also that the employee will be able to return to their position at the end of the extended leave.

What advice would you give an employee who is returning to work after an extended leave?

Often we see that employees who take leave to care for their own medical issue know that the leave may be coming and have likely been working with their employer prior to their extended leave by asking for intermittent days off or possibly even accommodation in the work place. In instances where the employee's family member is sick, often times that is a more sudden or unexpected situation for the employer who may not see the day to day situation of the loved one.

The federal FMLA, as well as the equivalent state statute in D.C. does not distinguish between leave to care for the employee's illness versus taking time to care for the illness of a child, parent, or spouse. Maryland has a state-level leave statute for parents and Virginia provides no state level family or medical leave. Because of this, employees in Maryland and Virginia must look to the federal FMLA for medical leave for themselves and for their families. 

In addition to the panel on the Family Medical Leave Act and paid leave statutes, "Changing Currents" will delve into the new overtime rules in the Fair Labor Standards Act, litigating a failure-to-hire case, whistleblowers and qui tam litigation, and LGBT discrimination and "bathroom" statutes

The course takes place from 6 to 9:15 p.m. at the D.C. Bar Conference Center, 1101 K Street NW, first floor. Register today!