Family and Medical Leave Act

Under the federal Family and Medical Leave Act (FMLA), eligible employees are entitled to up to 12 weeks of unpaid job-protected leave for specified family and medical reasons within a 12-month period. 29 U.S.C. 2601 et seq. These reasons include the birth of a child or to care for a newborn child within one year of birth, the placement of a child for adoption or foster care or to care for the child within one year of placement, the employee's own serious health condition, and to care for a child, spouse or parent with a serious health condition. Leave may also be taken in certain circumstances when the employee's child, spouse or parent is a military member on covered duty or to care for a child, spouse, parent or next of kin who is a service member with a serious illness or injury. 29 C.F.R. § 825.100.Spouses employed by the same employer may take a combined total of 12 weeks for the birth or care of a newborn child or adoption or foster care placement. 29 C.F.R. § 825.120.

 The FMLA applies to employers with 50 or more employees. 29 C.F.R. § 825.104. To be eligible, employees must have worked for the employer for a total of 12 months and must have worked at least 1,250 hours over the previous 12 months.

During the leave, the employer must maintain the employee's coverage under any group health plan on the same conditions as if the employee was not on leave. Employers or employees may choose to substitute accrued paid leave—such as sick or vacation leave—for unpaid FMLA leave, with the paid leave and FMLA leave running concurrently. 29 C.F.R. § 825.207.

Upon return from leave, an employee must be restored to his or her original job or an equivalent job. However, an employee has no greater right to restoration or other benefits of employment than if the employee had been continuously employed. 29 C.F.R. § 825.216. Thus, if an employee is laid off during FMLA leave, and would have been laid off if continuously employed, he or she need not be reinstated.

Minnesota Parental Leave Act

The Minnesota Parental Leave Act (MPLA) provides up to six weeks of unpaid job-protected leave for the birth or adoption of a child. Minn. Stat. § 181.941. The leave must begin within six weeks after the birth or adoption. The MPLA applies to employers with 21 or more employees at any one site. To be eligible, employees must have worked for the employer for at least 12 consecutive months preceding the leave for an average of one-half the full-time equivalent position. Minn. Stat. § 181.940, subds. 2-3.

During the leave, the employer must continue to make coverage under any group insurance policy available, but may require the employee to pay the full cost of coverage. Minn. Stat. § 181.941. Employers or employees may choose to substitute any paid parental or disability leave for unpaid MPLA leave, with the paid leave and MPLA leave running concurrently. However, the employer may not require the employee to use paid sick leave during his or her MPLA leave. Minn. Stat. § 181.943. Spouses who work for the same employer are each entitled to six weeks' leave.

An employee returning from MPLA leave must be reinstated to his or her former position or a comparable position. However, if during the leave the employee would have lost his or her position "pursuant to the good faith operation of a bona fide layoff and recall system," the employer is not required to reinstate the employee. Minn. Stat. § 181.942.

Extending Right to Reinstatement

An employer may agree to extend an employee's MPLA leave beyond six weeks, but the extension of leave does not extend the right to reinstatement absent a specific agreement to reinstate. Hansen v. Robert Half Int'l, 813 N.W.2d 906 (Minn. 2012). However, courts may find a specific agreement to reinstate unless the employer specifically indicates that it is extending leave but not extending the reinstatement right.

 In Kersten v. Old Dominion Freight Line, Inc., No.11-1036, 2012 WL 5985503 (D. Minn. Nov. 29, 2012), the employee and employer agreed that the employee's parenting leave would begin September 10, 2009, and conclude November 1, 2009. The employee emailed her manager on September 18 and requested to "come back on the 9th as long as that is ok with you." The manager responded, "Nov. 9 will work." The court held that the e-mail exchange constituted a specific agreement to extend the right to reinstatement to November 9. Based on this case, employers should take care to specify what they are agreeing to when addressing a request for leave longer than six weeks.

Layoff Exception to Reinstatement

Although the exception for "bona fide layoff and recall" under the MPLA appears similar to the FMLA, the U.S. District Court for the District of Minnesota recently held that the MPLA's exception to reinstatement is narrower than the FMLA exception. Kersten, 2012 WL 5985503. In Kersten, the employer terminated an employee who was on leave. The employer argued that the employee was laid off as part of a valid reduction in force (RIF) because it was the employer's policy to terminate the least-senior employee when making job eliminations due to economic cutbacks, and the employee was the least-senior employee. The court determined that, although a valid RIF is a defense to termination under the FMLA, the MPLA language is distinct and does not exempt layoffs pursuant to a RIF. Thus, the court determined that a RIF is not covered by the bona fide layoff and recall exception. Id. at *3. The court also concluded that the employer's policy of terminating the least-senior employee was not a bona fide layoff and recall system because it was "not a written policy" and there was no evidence that the employer recalled employees. Minnesota appellate courts have not spoken on this issue, that is, whether a bona fide layoff and recall system is narrower than a RIF under the FMLA. Thus, careful employers should avoid discharging employees on leave pursuant to a RIF.

Which Leave Applies?

Because the MPLA applies to smaller employers and has different employee eligibility requirements, certain employers may only be subject to the MPLA and certain employees may only be entitled to MPLA leave. If so, the employer is only required to comply with the MPLA requirements. Likewise, if an employee's leave is covered only by the FMLA—for example, leave to care for a child with a serious health condition—only the FMLA is applicable.

Many Minnesota employers will be covered by both the FMLA and MPLA. If both statutes are applicable to an employee's leave, the two periods will run concurrently, with the employee's MPLA leave rights expiring after six weeks—unless extended by agreement. The employee's FMLA leave rights may extend up to six additional weeks. The employer should comply with the law that provides greater benefits to employees during the applicable period. For example, because the FMLA requires employers to continue group health coverage on the same terms, the employer may not require the employee to pay the entire cost of health coverage during any of the 12 weeks if the employee would not have been required to do so while working. But because the MPLA's layoff exception to reinstatement is narrower, the employer should comply with the MPLA's reinstatement provisions during the first six weeks of leave, and then comply with the FMLA's reinstatement provisions during the remaining six weeks. Employers should also ensure that they comply with each statute's specific notice and certification requirements.

Other Considerations

Absence to Care for Sick or Injured Child
Minnesota employees must be permitted to use sick leave benefits to care for their sick or injured children on the same terms that they are able to use sick leave benefits for their own illnesses or injuries. Minn. Stat. § 181.9413. This applies to any accrued sick leave benefits the employer chooses to offer, but does not mandate that employers provide sick leave. Also, it does not apply to short-term or long-term disability or other salary-continuation benefit plans.

Break Time for Nursing Mothers
Since the passage of the Affordable Care Act in 2010, the Fair Labor Standards Act requires employers to provide "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk." Employers are not required to pay employees for this break time. However, employers are required to provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk." 29 U.S.C.§ 207(r).