Federal law and guidance on this subject should be reviewed together with this section.
Author: Susan A. P. Woodhouse, Littler
- Florida does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
- Miami-Dade County has requirements pertaining to family and medical leave. See Local Requirements.
Family and Medical Leave
Florida does not have a state family and medical leave law applicable to private employers. However, a Florida employer with 50 or more employees is likely required to adhere to the federal Family and Medical Leave Act (FMLA).
A Florida employer with employees in Miami-Dade County may be subject to that county's family and medical leave law. See Local Requirements.
Retaliation: Be wary of potential liability for FMLA retaliation under the cat's paw theory, wherein an employer can be held liable for employment discrimination based on the discriminatory animus of a lower-level manager or supervisor who influenced, but did not make, the final employment decision. The 11th Circuit Court of Appeals (covering Alabama, Florida and Georgia) extended the cat's paw theory to an FMLA retaliation claim in Hyde v. K.B. Home, Inc., +355 F. Appx. 266 (2009). See FMLA: Federal.
The Supreme Court ruled that the 14th Amendment requires a state to do the following:
- License a marriage between two people of the same sex; and
- Recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.
Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015).
Same-sex marriage is legal nationwide, and couples lawfully married in any state, including Florida, are entitled to FMLA spousal leave benefits.
In addition, a Florida employer should be careful if it seeks to confirm an employee's same-sex spousal relationship (for purposes of FMLA) to ensure it does not discriminate in any way. While the FMLA allows an employer to confirm a family relationship, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation).
Apart from FMLA considerations, employers with employees residing in Florida should look at existing policies that provide for leave based on spousal relationships, such as bereavement leave or military leave. Policy language (such as how a spouse is defined) may need to be revised.
Interaction of Leave Laws
Other types of leave may be available to Florida employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Other Leaves: Florida. While some of these laws can run at the same time, others cannot.
Remain alert to the various types of leave available and take care to track an employee's leave of absence, including:
- The date the leave begins;
- The type of leave; and
- The expected return date.
Miami-Dade County Family and Medical Leave
The Miami-Dade County family and medical leave law applies to any employer that in the regular course of business has 50 or more employees working in Miami-Dade County for each working day during each of the 20 or more calendar work weeks in the current or preceding calendar year.
A covered employer should consider including a family and medical leave policy in its handbook to educate employees, including supervisors, about the availability of family and medical leave and to show its compliance with Miami-Dade County law.
An employee is eligible for leave if:
- Employed in Miami-Dade County for a minimum of 12 months with the employer who the employee requested leave; and
- Worked a minimum of 1,250 hours during the previous 12-month period.
Qualifying Reasons for Leave
The reasons for taking leave are the same qualifying reasons as under the FMLA; however, the Miami-Dade County law also allows leave to be taken for a grandparent with a serious health condition on the same terms and conditions as leave is permitted under the FMLA to care for a parent with a serious health condition.
A grandparent of the employee is any grandparent for whom the employee has assumed primary financial responsibility).
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