Most employers are aware of the federal Family and Medical Leave Act (FMLA), which provides for job protected leave in certain situations. FMLA applies only to employers with 50 or more employees and to employees who:
- Work at a location where at least 50 employees are employed by the employer within 75 miles of that location;
- Have worked for that employer for at least one year; and
- Have worked at least 1,250 hours over the last twelve months.
Under FMLA, employees can take up to twelve weeks of leave for their own serious health condition or to care for certain family members (generally speaking, a spouse, parent, child under 18 or a child over 18 who is disabled and therefore incapable of self-care) or for child bonding following birth, adoption or a foster placement.
There are additional leave requirements related to military service.
Some employers are not aware, however, of their obligations under state family and medical leave laws that may apply to their employees. Those state laws may allow employees to take job protected time off above and beyond the leave that is mandated under FMLA.
New Jersey
The New Jersey Family Leave Act (NJFLA) applies to most New Jersey employees who have worked:
- For their employer for at least 12 months;
- For at least 1,000 hours during the previous 12 months; and
- For a company with at least 30 employees nationwide.
Under NJFLA, covered employees can take up to 12 weeks every 24 months due to a family member’s serious health condition or for child bonding. Notably, the definition of family member under NJFLA is broader than it is under FMLA and also includes foster children, children born pursuant to a valid written agreement between the parent and a gestational carrier, parents-in-law, siblings, grandparents, grandchildren, domestic partners, any blood relatives, and, in a catch-all category, anyone with a close association to the employee that is equivalent to that of a family member. Leave taken for child bonding may be covered under state sponsored family leave insurance. Unlike the FMLA, the NJFLA does not provide time off for an employee’s own serious health condition.
New York
The New York State Paid Family Leave (NYSPFL) provides eligible employees with up to 12 weeks of job protected, paid time off (the amount of pay is capped and is provided through insurance that may be funded by employees through payroll deductions):
- To bond with a new child;
- Care for a family member with a serious health condition; or
- To assist loved ones when a family member is deployed abroad on active military service.
As with the NJFLA, the NYSPFL does not provide time off for an employee’s own serious health condition. Also as with the NJFLA, the definition of family member under New York’s law is expansive and includes employees’ spouses, domestic partners (including same and differently gendered couples), children and step-children, anyone else recognized to be in the legal custody of the employee, parents, step-parents, parents-in-law, grandparents, grandchildren, and anyone to whom the employee stands in loco parentis (typically meaning that the employee provides parent-like day-to-day care and financial support even if they are not legally or biologically related to the individual). Employees will be eligible for paid leave benefits after working full-time for their employer for 26 weeks, or part-time for 175 days.
Delaware
On May 10, 2022, Delaware Governor John Carney signed into law the Healthy Delaware Families Act, which creates a statewide paid family and medical leave insurance program. Payroll contributions will begin January 1, 2025, and the state will start paying benefits on January 1, 2026. Coverage under the Delaware paid family and medical leave law largely tracks coverage under the FMLA, meaning that an employee must have at least 12 months of employment by a covered employer for at least 1,250 hours of service (or be reasonably expected to meet these requirements). The law pertains to any individual “primarily reporting for work at a worksite” in Delaware and anyone else the employer classifies as a Delaware employee. Covered individuals who work for covered employers with 10 to 24 employees during the previous 12 months are eligible only for the law’s parental leave benefits, whereas those who work for covered employers with 25 or more employees during the previous 12 months are eligible for all benefits available under the law.
Maryland
Maryland’s Time to Care Act of 2022 (TTCA), which is effective June 1, 2022, provides for Maryland workers to apply for paid leave benefits from a state fund starting on January 1, 2025. Contributions from employees and employers are not required until October 1, 2023. Under the TTCA, there are five broad categories of leave where a covered individual may obtain paid leave benefits:
- Child bonding for a newborn child or child newly placed for adoption or foster care;
- Care for a family member with a serious health condition;
- The employee’s own serious health condition;
- Care for a service member with a serious health condition resulting from military service who is the covered individual’s next of kin; or
- Attend to a qualifying exigency arising out of the deployment of a service member who is a family member of the covered individual.
Any leave the employee takes runs concurrently to their FMLA leave entitlement.
Pennsylvania
In a state where the minimum wage remains $7.25/hour, it should surprise no one that there is no state family and medical leave law in Pennsylvania.
Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding human resources compliance issues.