We already have a federal law requiring up to 12 weeks’ job-protected leave for qualifying employees of covered employers. I am, of course, referring to the FMLA. Click here for some review. As you likely know FMLA does not require that employees be paid during that time. Paid family medical leave bills have been introduced in Congress, but none have actually been passed. As an employer you might be glad. One less administrative and financial headache, right? Maybe not. In fact, many employers might be better off with a federal family medical leave law. Whaaaat???? Join The EmpLAWyerologist after the jump and I’ll explain…
(Image from cnn.com)
So, why would — or should–you as an employer pay this issue any mind? If you are subject to the FMLA you already have to give qualifying employees time off and you have to hold their jobs open and maintain their benefits (if they’re paying their share of the premiums). You may also have to pay someone else to come in and do that person’s job, or reallocate the work temporarily. Why would you want Congress to require you to pay those employees on top of all that? Well, OK, if we say it that way, it seems silly. But wait a minute. You might already be paying the employee who is on leave — or you might have to soon enough, even without a federal paid leave law. Why? We’ve seen a trend in this country in the last few years, whereby Congress for whatever reason fails to pass legislation and states and localities get impatient and jump in with their own legislation. Now you’ll want to start paying attention, because this is where the fun begins. (You know I’m being facetious, right?)
Currently, 5 states have paid family leave laws. California was the first state (no surprise there) to pass a family leave insurance program in 2002 and implemented it in 2004, providing up to six weeks paid leave at up to 55% of the employee’s earnings. New Jersey came next in 2009, also offering up to 6 weeks paid leave. Rhode Island passed legislation in 2014 giving eligible employees up to 4 weeks’ paid leave. Washington State passed its own paid family leave law in 2007 but has yet to implement it. So far we’re talking about a few states requiring up to 6 week’s paid family leave–and the pay is usually not 100% of the employee’s usual wages. But then there’s New York State. New York passed legislation last month that will mandate up to 12 weeks’ paid leave. It also applies to full and part-time employees and has no exemption for small businesses. Oh and then there’s California–again. On April 11, California amended its existing paid family leave law. As of 2018, employees earning close to minimum wage will be entitled to earn up to 70% of their regular wages while on leave and higher-paid employees earning up to $108,000 a year will be able to receive up to 60%.
Generally, family leave laws provide paid leave for employees to bond with/care for a newborn, adopted or foster child, or to care for a sick parent, child or spouse. They do not allow paid leave to take care of one’s own medical condition. OK, so there are 5 states with some paid leave to care for certain family members. It’s an issue, but if you’re not in those states, why worry? Because we’ve only peeled the first layer of the onion (insert ominous-sounding music here).
You see, those are just the paid family leave laws. We didn’t even get to the paid sick and safe time laws. What’s that? Paid sick time also allows employees time off to care for their own medical condition. Paid safe time refers to paid time off to deal with domestic violence matters, where the employee is either the victim or is helping a close relative who is. These laws generally allow one hour for every 30 hours worked for anywhere from 40 to 72 hours a year and sometimes with some carryover. Currently Connecticut, California, Massachusetts, Oregon, Vermont, and Washington DC have some type of paid sick leave law on the books. OK, so five states and the District of Columbia have paid sick/safe time laws. That doesn’t sound like a big deal either. Guess what? There’s another layer…
Many counties and municipalities, unwilling to wait for things to happen at the state level, have passed their own legislation, mostly in the form of paid sick and safe leave. New York City employees have had access to such leave since April 1, 2014. On April 5, San Francisco passed an ordinance allowing 6 weeks’ fully paid time off for new parents. It will be phased in starting January 2017 for employers with 50 or more employees. By January 2018 employers with 20 or more employees will be subject to the same requirements. As of today at least 12 municipalities in New Jersey have some type of paid sick/safe time laws, as do Montgomery County, Maryland, Seattle Washington, Spokane, Washington, Tacoma, Washington, Oakland, California, Emeryville, California, Philadelphia, PA…you don’t need me to keep going, do you? The list is long and growing.
If you still need convincing, consider this: Each state and each locality have their own laws, with their own nuances. Some states/localities might exempt businesses of a certain size; some might not. Some might provide more paid leave time than others; some might allow carryover. With a growing number of local sick/safe leave laws, the number of moving parts is dizzying. You, the employer therefore have to know whether you are subject to state and local leave laws. The more locations where you employ people, the greater likelihood that you will be subject to more of these laws. Moreover, while you may not now be in a state or locality with paid family, sick or safe leave, give it time. There’s a decent chance you will be, eventually. That is where a federal may actually be of help. A federal law could preempt at least some of the state and local laws and provide some uniformity, which in turn would streamline your work. Admittedly that’s no guarantee. State and local laws can fill in the gaps left by federal laws–but it could also slow down some of the momentum at the state and local levels. Just a few thoughts…
Join The EmpLAWyerologist next week when we jump back again to the NLRB and its position on arbitration agreements. See you then!
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Are you a N.J. employer/business owner? Join the new LinkedIn group, New Jersey Business Litigation Forum, run by my friend and colleague, Gene Killian. Click here for more info.
Click here and here to register and hear my recorded webinars “Leave Abuse under FMLA, ADA and Workers’ Comp: How Employers Can Deal with the Most Outrageous Excuses”, and FMLA, ADA & Workers Comp – Crafting Policies and Procedures for Managing Employee Leave.
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