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Q: How does FMLA compliance intersect with the emerging patchwork of state and local laws?

This question is one many U.S. employers are considering, according to employment law attorneys, as leave laws extending the provisions laid out in the Family and Medical Leave Act pop up across the country.

Delaware, for example, enacted the Healthy Delaware Families Act in May, a law that provides paid parental, family caregiving and medical leave effective January 2025.

Legislators are creating laws like this one to fill certain gaps the FMLA leaves exposed, according to Alexandra Barnett, partner in Alston & Bird’s labor and employment group. Enacted in 1993, the FMLA provides unpaid, job-protected leave to certain employees of certain employers. 

“FMLA leave is not available, however, if an employee does not meet the eligibility requirements or if the employer is not covered by the FMLA,” Barnett told HR Dive in an email interview. “To fill these voids and in the absence of paid family and medical leave provided at the federal level, some states and municipalities have enacted paid family and medical leave laws.”

These laws also enable employees to take paid leave — as opposed to the FMLA’s unpaid leave — in several circumstances where the FMLA would forbid it. The laws may extend to employers that do not provide leave as a benefit, for instance. Or they cover employees who are typically ineligible for leave under an employer’s policy or the FMLA. The laws also may cover employers that aren’t covered under the FMLA.

Such is the case in Delaware. Paid leave provided by the new law will run concurrently with FMLA leave, Barnett noted, but it applies to employers with 10 or more employees working in the state during the previous year. The FMLA, by contrast, establishes a coverage threshold of 50 employees.

The Delaware law makes some exceptions for smaller employers: Organizations with 10 to 24 employees need to comply only with its parental leave requirements. But once employers cross over the 25-person mark, the law requires them to comply with its parental, family caregiving and medical leave requirements, Barnett said. 

“The 10-employee threshold under the Delaware law means that smaller employers and/or those with a smaller footprint in Delaware who are not covered employers under the FMLA will need to provide paid leave in accordance with the new law,” Barnett explained.

While Delaware employers and others in states with paid leave laws are now dealing with laws that are generally more generous than the federal leave mandate, such employers can’t forget their FMLA obligations. The FMLA and applicable state laws do not necessarily contain identical or interchangeable requirements for employers, Barnett said.

These tandem leave laws make a confusing situation for employers. Multi-jurisdiction employers encounter an even greater challenge as they navigate the ever-changing patchwork of state and local paid leave laws. 

Employers are exploring various approaches to ensure compliance at all levels. Some seek compliance by creating a “one-size-fits-all leave policy” that applies to all employees across jurisdiction and grants leave benefits that meet the various state and local requirements where the employer operates, Barnett said. Some experts have previously noted that this approach doesn’t absolve employers from compliance with each law’s notice and posting requirements, however.

Others opt to create a general leave policy with state- or municipality-specific leave policies that are only applicable to employees in those jurisdictions, Barnett noted.

“Each of these approaches has its pros and cons,” she said, “and an employer’s approach may depend on the size of its workforce, where it operates, and its available resources to manage a variety of leave requests.”