Many states and municipalities’ efforts to update workplace regulations governing paid leave beyond the federal Family and Medical Leave Act (FMLA) are presenting difficulties for employers, particularly large ones that operate in numerous states, labor and employment experts said.
At least seven states and the District of Columbia have introduced legislation recently that offers or expands paid family or medical leave: California, New Jersey, New York and Rhode Island currently require paid family leave, which is funded through employee payroll deductions, existing temporary disability insurance programs, and, in some cases, commercial insurance arrangements.
New York’s Paid Family Leave Act went into effect in January and guarantees eight weeks of paid leave in 2018, increasing to 12 weeks by 2021, when caring for an infant or a family member.
The District of Columbia enacted a paid family leave law in February 2017 that takes effect in July 2020.
Washington state passed a measure to create a paid family leave program in July 2017, with benefits starting in 2020, according to the National Conference of State Legislatures.
Last month, the New Hampshire House approved a state-run program that would offer six weeks of paid family and medical leave insurance and 60-percent wage replacement. The state Senate Finance Committee has a scheduled hearing on the measure later this month. In Maryland, the Senate passed a bill that would give tax credits to businesses that offer employees paid sick leave. The bill needs the House of Delegates’ approval before moving to the governor’s desk.
These measures are in addition to those that are already in place or scheduled to go into effect in several other states and municipalities, said Sherry Leiwant, co-founder and co-president of A Better Balance, a New York City-based nonprofit legal organization that works to advance working families’ rights, and drafted the language in many of these bills. Austin, Texas, for example, became the first city in that state to pass a paid sick leave policy in February, when the city council approved a bill that will, beginning in October, allow workers to accrue one paid hour off for every 30 hours worked.
“With these issues, it’s an intersection between labor rights and women’s rights and a recognition that there should be minimum standards on these issues, as well as how much money you get in your paycheck,” Leiwant says of the current trend.
There is no federal law governing paid sick leave in the United States, although the overwhelming majority of states have enacted some sort of policy, Leiwant said.
The federal Family and Medical Leave Act, enacted in 1993, requires covered employers to provide workers with job-protected and unpaid leave for qualified medical and family reasons but still leaves many gaps, said Amanda Farahany of Atlanta-based plaintiffs employment firm Barrett & Farahany.
In addition to mandating that the time off be unpaid, the FMLA has several restrictions, including, as one example, the requirement that the employer have 50 or more employees.
“The states are filling in what FMLA does not have,” Farahany said.
But as the Austin case demonstrates, it’s not just the states that are looking to fill in those gaps, said Albert Randall, a labor lawyer at Franklin & Prokopik in Maryland. Many municipalities, in some cases the more politically liberal locales within a more conservative state or, in other instances, local governments that feel the state is not acting quickly enough, also have gotten into the game, creating difficulties for many employers, Randall said.
“What large employers, or at least those that operate in multiple jurisdictions, are dealing with is the fact that there is no one definition,” he said. “Now you’re getting the states, the counties and even larger incorporated cities that are coming up with their own definitions.”
Randall cites as an example family leave measures that could be so broadly defined that they include paid time off for domestic violence victims or for parents to attend school-related activities and events for their children.
“Given the promulgation of these types of regulations across the country, many employers have been forced to move to paid time off,” he said. “So they either try to word their PTO broadly enough that it encompasses these various types of definitions, or they are tasked with [developing] separate leave policies and definitions for their PTO policies depending on the jurisdictions.”
But Randall offered a couple of tips for employers trying to navigate this trend in paid leave: First, maintain an ability, either through counsel or the HR department, to monitor developments in this area at all levels, particularly at the county and municipal level, which are more difficult to track, Randall said. Also, be aware of the ambiguity in many of these states’ laws, particularly around the issue of when an individual becomes entitled to the benefit, and identify those areas where the ambiguities lie, he added. “Much of this legislation is passing without the specificity that an employer would like,” Randall said.
— Read Starbucks to Spend $250 Million on Worker Benefits After Tax Cut on ThinkAdvisor.