November 28, 2021

Volume XI, Number 332


What Am I Doing Wrong?? Common FMLA Mistakes: Mis-steps and Legal Liability

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 22nd blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Not taking into account the interplay of the federal FMLA and “state FMLA” laws.

This post takes on a bit of a different twist by expanding beyond the federal FMLA. A common mistake employers can make in FMLA leave management is not taking into account “state FMLA” leave laws that might provide different or additional rights than the federal FMLA.

Employers can unintentionally overlook state FMLA leave laws, particularly if an employer has remote workers or small numbers of employees across multiple “state FMLA” jurisdictions.

The nature of these laws vary, some adding additional family members to the definition of a covered family member, some setting lower employee thresholds for leave eligibility, some providing for only additional family leave rights, and some mirroring the federal FMLA more closely but providing leave over a longer period of time.

Currently, the following states have “state FMLA” leave laws:

  • California
  • Colorado
  • Connecticut
  • District of Columbia
  • Hawaii
  • Maine
  • New Jersey
  • Oregon
  • Rhode Island
  • Vermont
  • Wisconsin

Additionally, the Miami-Dade County Family Leave Law in Florida requires the same leave as Federal FMLA for Miami-Dade County employees, with the addition of leave to care for a grandparent with a serious health condition on the same terms and conditions as leave under the FMLA to care for a parent with a serious health condition.

In jurisdictions with state FMLA leave laws, employers should consider comparing the state law with the federal FMLA to determine any additional rights to which employees may be entitled. These laws also typically have their own notice requirements.  In some states, a state-specific policy may be appropriate, or required. Overlooking these details could result in liability under state law.

Jackson Lewis P.C. © 2021National Law Review, Volume IX, Number 101

About this Author

Sheri Giger, Jackson Lewis, human resource policy attorney, employment labor development lawyer,

Sheri L. Giger is a Principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. Her practice focuses on preventive human resource policy development, training and counseling and advice.

Ms. Giger also works on policy/handbook development, particularly for multi-state issues and compliance. She also works with compliance issues under the American with Disabilities Act, as amended, and the Family and Medical Leave Act, as amended. Ms. Giger counsels and conducts extensive training on topics such as anti-harassment...