Human Resources professionals and business owners in the U.S. are tasked with tackling the confusing requirements of the types of family medical leave available, how the federal and state leaves interact with each other, and ensuring compliance across state lines when a business operates in more than one state. Is an employee eligible for leave? Which type of leave – federal leave or state leave? Is the leave paid or unpaid? How many days or weeks can they take?
Federal Family Medical Leave, passed in 1993, offers unpaid leave. But in the absence of a federal paid leave program, a growing number of states are passing their own legislation for paid medical leave.
At SHRM’s 2019 Employment Law & Legislative Conference in Washington, D.C, Lisa Horn, Vice President for Congressional Affairs noted, “Paid leave and flexible work options help attract and maintain an engaged, productive workforce,” Horn said, “but a fragmented patchwork of state and local leave requirements creates a compliance conundrum, [and] rigid government mandates stifle employer flexibility and innovation.”
Research shows that paid leave is beneficial to business in a number of ways. Lynn Friss Feinberg, a Senior Strategic Policy Advisor for AARP’s Public Policy Institute notes, “Paid family leave has been shown to lessen the strain of caregiving, provide family caregivers with greater financial security, increase employee retention, and help maintain a productive workforce.”
California was the first state to enact a paid leave program, back in 2004. Today, eight states have passed legislation for paid leave, along with the District of Columbia. And a growing number of other states are considering some type of paid leave, as well. Each of their policies differ from one another in terms of how the program is funded, what situations qualify for paid leave and how many weeks’ leave is included.
In 2019, Connecticut passed Connecticut Family Medical Leave (CTFMLA). Widely considered to be one of the most generous of all state leave programs, the bill applies to employers with just one employee and offers 12 weeks of paid leave. While paid leave benefits won’t start until 2021, a required payroll tax of .5 percent of income begins on January 1, 2020, to start funding the program.
How will the state paid leave policies interact with existing unpaid state and federal leave legislation? That remains to be seen.
In 1993, the U.S. enacted the Family Medical Leave Act, which requires employers with 50 or more employees to offer up to 12 weeks of unpaid leave in a 12-month period. Many states also offer unpaid leave programs that don’t necessarily mirror the nuances of federal FMLA.
Employers must consider a number of other factors when looking at paid or unpaid time off. The Americans with Disabilities Act could come into play when a leave of absence may be considered a reasonable accommodation, allowing an employee to return to work after an extended absence. Other special considerations must be given when medical leave is a result of a work-related accident or illness, and whether different types of leaves can be run concurrently.
What’s an employer to do? At a minimum, businesses should review their current policies and handbook for compliance to these various issues and train their supervisors on an appropriate first response to an employee who inquires about a leave of absence. In the past, many small employers were automatically exempt from leave legislation but that is no longer necessarily accurate.
Businesses without a dedicated HR department should strongly consider partnering with an HR consulting firm to ensure compliance with the myriad of leave laws.