An employee walks into HR and says she needs time off. Maybe she is having a baby. Maybe she needs surgery, or her father is ill. The request sounds simple. The answer is not, because one absence can be covered by several different laws at the same time: the federal Family and Medical Leave Act (FMLA), a state paid leave program, a separate state family leave law, paid sick leave, disability accommodation rules, workers’ compensation, and the employer’s own PTO or short-term disability policy. Each law has its own rules, and the rules do not always agree.

The most common employer mistake is treating “leave” as one question. It is at least four: Can the employee be absent? Is the job protected? Who pays? And what happens when one entitlement runs out?

Job Protection and Pay Are Two Different Things

The FMLA protects the job but does not pay the employee. If an employer has 50 or more employees, an eligible employee can take up to 12 workweeks of unpaid leave, keep her health insurance, and return to the same or a similar job. The FMLA does not require the employer to pay her during that time.

State paid family and medical leave (PFML) programs do the opposite. They pay the employee a portion of her wages while she is out. About a dozen states plus the District of Columbia now run these programs, and the list is growing. Delaware and Minnesota started paying benefits on January 1, 2026; Maine started on May 1, 2026, and Maryland and Virginia are scheduled to start in 2028.

Here is the trap. Some state programs also protect the employee’s job. Many do not. California’s Paid Family Leave and State Disability Insurance, for example, pay benefits only. The Employment Development Department says directly that they do not protect the employee’s job. In California, job protection comes from other laws: the FMLA, the California Family Rights Act (CFRA), or Pregnancy Disability Leave. Other states do write job protection into their paid leave law, but with their own conditions, such as how long the employee has worked there or how many people the company employs, and those conditions change. Washington’s changed on January 1, 2026.

Employers should therefore avoid two opposite mistakes. The first is assuming that because the state is paying the employee, her job is protected the way it would be under the FMLA. The second is assuming that once the state stops paying, or denies the claim, the employer’s obligations are over. They may not be. Even after every leave law has been used up, the employer may still have to give more time off as a reasonable accommodation under the Americans with Disabilities Act, the Pregnant Workers Fairness Act, or, in California, the Fair Employment and Housing Act.

The Same Employee May Qualify Under One Law but Not Another

The rules for who qualifies do not line up. The FMLA requires a year of service, 1,250 hours of work, and a worksite with 50 employees within 75 miles. California Paid Family Leave has no employer-size or tenure threshold. An employee at a 20-person company, or a new hire with three months on the job, can collect California benefits while having no FMLA rights at all.

The reasons for leave differ, too. Many state programs let employees take leave to care for a wider group of people than the FMLA allows, including in several states a “designated person” who is not even a relative. Some also cover reasons the FMLA does not, such as time off for a victim of domestic violence. Sometimes a state paid leave program covers a reason the FMLA does not, such as caring for a close friend. In that situation, the employee is using state leave, but not FMLA leave, and the U.S. Department of Labor has said the employer cannot deduct that time from the employee’s 12 weeks of FMLA leave. The employee’s FMLA leave stays fully available for a later FMLA-qualifying reason.

If You Do Not Designate the Leave, You May Pay for It Twice

When one absence qualifies under both the FMLA and a state law, the two leaves can run at the same time, so that 12 weeks under one law is also 12 weeks under the other. But that only happens if the employer does its part. Under the FMLA rules, the employer must tell the employee in writing, within five business days, that the leave is being counted as FMLA leave. Under the FMLA, running two leaves at the same time is the employer’s choice, made by sending the designation notice. Some states remove that choice and make it mandatory. California is one of them: when an employee collects Paid Family Leave benefits, the time must count against her FMLA and CFRA leave at the same time, not one after the other.

If the employer never sends the notice, the employee may end up with 12 weeks of state-paid leave followed by another 12 weeks of FMLA leave. The FMLA rules do allow an employer to designate leave after the fact if the delay did not harm the employee, but that is a safety net, not a plan.

Be Careful About Making Employees Use PTO

Normally, the FMLA lets an employer require employees to use their accrued vacation or PTO during FMLA leave, since FMLA leave is otherwise unpaid. In January 2025, the U.S. Department of Labor said that rule does not apply while the employee is receiving state paid leave benefits. Because the employee is being paid, the leave is no longer “unpaid,” so the employer cannot force her to use PTO at the same time. The employer and employee can agree to use PTO to top up the state benefit, if state law allows it, and once the state benefit ends, the normal rule comes back. California has its own version of this rule: since January 1, 2025, an employer can no longer make an employee use up vacation before she starts collecting Paid Family Leave.

Employees in Different States Get Different Answers

Two employees making the same request can trigger different obligations depending on where each of them works. Most state programs look at where the employee does the work, not where the company is headquartered. Each state has its own rule for deciding that, and the rules differ, especially for remote employees and employees who work in more than one state. A remote employee in Minnesota may be covered by Minnesota’s program even if her employer is based in California and has never dealt with Minnesota’s rules before.

What Employers Should Do Now

• Ask two separate questions on every leave request: Is the job protected, and who pays? Write down both answers.
• Send the FMLA notices on time, and track all overlapping leaves in one place so they run at the same time.
• Do not require employees to use PTO while they are receiving state paid leave, short-term disability, or workers’ compensation benefits. Offer a voluntary top-up instead, where state law allows it.
• Before ending anyone’s employment at the end of a leave, check whether more time off is required as a reasonable accommodation, and document that conversation.
• Keep a state-by-state leave chart and review your policies every year. Several states changed their rules in 2025 and 2026, and more changes are coming.

More states are adopting paid leave every year, and each new law adds another set of rules. Employers who handle every leave request through one consistent process will stay out of trouble. Employers who decide each request on the fly will end up with stacked leaves, missed notices, and, eventually, lawsuits.

Tressler LLP’s employment attorneys help employers of all sizes manage leave, from updating handbooks and policies to handling the hard cases that do not fit neatly under any one law. With offices in California and across the country, we regularly help employers with employees in more than one state sort out how the FMLA, state paid leave, and disability accommodation rules fit together. If you would like us to review your leave policies or have a specific request you are not sure how to handle, please contact attorney Bicvan Brown or any member of Tressler’s Employment Practice Group.

About the Author

Yewei “Vanessa” Wang focuses her practice on employment and general litigation. She represents insurers in UM and UIM arbitrations. She also handles employment and commercial disputes involving wrongful termination, discrimination, and wage-and-hour claims. Vanessa started as a law clerk in Tressler’s Orange County, CA, office. She worked in the practice areas of insurance, employment, and contract law.  Additionally, Vanessa holds a license to practice law in Asia, where she acquired significant legal experience before her admission to the bar in the United States. Click here to read Vanessa’s full attorney bio.