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Regulation and Compliance > Federal Regulation

Disability Insurance Observer: Paid leave

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We all benefit from having people with Ebola and other dreadful, highly contagious diseases stay home. All of us ought to share responsibility for paying for outbreak leave programs and other leave programs that benefit society as a whole.

But policymakers need to get away from thinking of creating new leave mandates as a great, cheap way to win voter support.

It’s easy for policymakers to assume that all employers with more than, say, 50 full-time employers have the resources to offer workers one week of unpaid vacation time per year, four hours of unpaid school emergency time per quarter, two hours of unpaid voting leave every election day, one week of paid sick leave per year, and two days of unpaid Netflix binge-watching leave per year.

Most policymakers seem either to work for reasonably solvent independent firms of their own, or for the kinds of government agencies, law firms, benefits consulting firms, insurance companies, trade groups or think tanks that have magical abilities to meet payroll without apparent hiccups; organizations that have some middle manager who could make up for a colleague’s sick day by cutting down on shopping time.

But the grim reality is that at most U.S. employers with any flexibility in hiring and firing, the typical employee is doing the work of two, or three, moderately productive employees.

Requiring colleagues to fill in for absent workers means that the workers in the office go from pretending not work an extra 15 hours per week to pretending not to work an extra 25 hours per week.

Especially given how tight credit is for small and midsize employers, those employers face desperate battles to come up with the cash to pay the employees they still have.

Meanwhile, the leave laws are so complicated that insurers and benefits consulting firms are discovering that they can make money by simply offering employers help with understanding the leave laws.

For both the leave law specialist and the employer, going to a breakfast seminar on the latest developments in leave laws may be pleasant, but it’s a terrible waste of our country’s economic resources. Instead of figuring out how to make better products, offer better services, strengthen the country’s infrastructure or prevent or ease the effects of pollution, some of the smartest, nicest, most energetic people in our country…are spending a lot of time and money figuring out exactly which workers are sick enough to qualify for unpaid leave.

See also: 5 ways to avoid ADA leave traps

Meanwhile, the grim truth is that the sorts of low-paid workers who are supposed to benefit from the new rules often don’t, because employers get around pesky labor laws by hiring the low-paid workers off the books.

Even small employers that want to do the right thing are hiring employees off the books simply because doing that is easier than getting through the maze of rules and procedures that the government staples to a new hire’s back.

A modest proposal: Move to a “principles-based” approach to leave regulation.

Replace complicated, one-size-fits-all leave mandates with streamlined, automated systems that employers and employees can use to negotiate leave agreements that meet their needs; update the agreements to reflect pleasant, and unpleasant, changes in circumstances; and enforce the terms of the agreements that employers wrote themselves.

If, for example, angry employees could communicate with an employer’s customers and creditors by rating how well the employer fulfilled its leave promises every month, maybe that would be a better enforcement mechanism than counting on an employer to be afraid of a 1 in 1,000 chance of facing a government benefit plan Family and Medical Leave Act (FMLA) compliance audit.


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