(a) Nothing in FMLA supersedes any provision of State or local law
that provides greater family or medical leave rights than those provided
by FMLA. The Department of Labor will not, however, enforce State family
or medical leave laws, and States may not enforce the FMLA. Employees
are not required to designate whether the leave they are taking is FMLA
leave or leave under State law, and an employer must comply with the
appropriate (applicable) provisions of both. An employer covered by one
law and not the other has to comply only with the law under which it is
covered. Similarly, an employee eligible under only one law must receive
benefits in accordance with that law. If leave qualifies for FMLA leave
and leave under State law, the leave used counts against the employee's
entitlement under both laws. Examples of the interaction between FMLA
and State laws include:
(1) If State law provides 16 weeks of leave entitlement over two
years, an employee would be entitled to take 16 weeks one year under
State law and 12 weeks the next year under FMLA. Health benefits
maintenance under FMLA would be applicable only to the first 12 weeks of
leave entitlement each year. If the employee took 12 weeks the first
year, the employee would be entitled to a maximum of 12 weeks the second
year under FMLA (not 16 weeks). An employee would not be entitled to 28
weeks in one year.
(2) If State law provides half-pay for employees temporarily
disabled because of pregnancy for six weeks, the
employee would be entitled to an additional six weeks of unpaid FMLA
leave (or accrued paid leave).
(3) A shorter notice period under State law must be allowed by the
employer unless an employer has already provided, or the employee is
requesting, more leave than required under State law.
(4) If State law provides for only one medical certification, no
additional certifications may be required by the employer unless the
employer has already provided, or the employee is requesting, more leave
than required under State law.
(5) If State law provides six weeks of leave, which may include
leave to care for a seriously-ill grandparent or a ``spouse
equivalent,'' and leave was used for that purpose, the employee is still
entitled to 12 weeks of FMLA leave, as the leave used was provided for a
purpose not covered by FMLA. If FMLA leave is used first for a purpose
also provided under State law, and State leave has thereby been
exhausted, the employer would not be required to provide additional
leave to care for the grandparent or ``spouse equivalent.''
(6) If State law prohibits mandatory leave beyond the actual period
of pregnancy disability, an instructional employee of an educational
agency subject to special FMLA rules may not be required to remain on
leave until the end of the academic term, as permitted by FMLA under
certain circumstances. (See Subpart F of this part.)
