April 14, 2016 – By Attorney Tara Swartz
The Family and Medical Leave Act (“FMLA”) is a federal law that was passed in 1993. It provides benefits to millions of workers across the United States. Very generally, the FMLA provides employees with at least 1 year of service who work for companies with at least 50 employees up to 12 weeks per year of leave: 1) for the birth or adoption of a child; 2) for one’s own serious medical condition; 3) to care for a family member with a serious medical condition; and 4) for military families in a variety of situations. One of the primary benefits provided by the FMLA, other than the time off from work itself, is that the leave is job-protected. This means that an employee who takes FMLA leave is entitled to be restored to his or her job (or an equivalent) upon returning to work. This benefit provides employees the ability to take care of themselves and their families with the assurance that they still have a job.
However, the FMLA does not require employers to pay employees while they are out of work on leave. A number of employers do have benefits that provide some form of payment to employees while out on leave, through short-term disability insurance, maternity/paternity, sick leave, and extended leave policies – but not all employers provide such benefits. This leaves employees to use vacation time and/or receive no pay at all during the time they are out of work. Since many workers live paycheck to paycheck, an unpaid leave from work can be devastating to a household.
Proponents of paid leave laws argue they are necessary so that employees will not have to choose between their health and their job. This will ultimately have a public health benefit and increase business profits because employees will be healthier and turnover will decline. Meanwhile, critics argue that forcing employers to provide paid leave will hamstring job growth and increase the price of goods and services.
On the federal front the debate continues as to whether leave time should be paid or unpaid and who should pay for it. In the meantime, Cities and States across the country are taking the matter into their own hands. Early this month, New York State joined a growing number of cities and states that have implemented paid leave laws in some form or another (e.g. California, New Jersey, Rhode Island, Massachusetts, San Francisco, New York City, Washington D.C.). New York State’s law provides for 12 weeks of paid leave in similar circumstances as the unpaid federal FMLA law, but will cap payment at 67% of wages. Also this month, San Francisco bolstered its paid leave law requiring businesses to now pay 6 weeks of full pay for maternity and paternity leave. California followed suit just a few days later by expanding the state’s paid leave law, increasing pay to employees from 55% of their wages for 6 weeks to a sliding scale between 60 and 70% depending on the amount of wages earned.
Who is paying for these paid leave policies? Employers are often required to pick up the tab through smaller sick leave laws such as the one implemented in 2015 in Massachusetts (40 hours at full pay per year). The larger family leave programs, however, appear to be passing the cost onto employees through mandated payroll deductions and are administered by the State.
What does this mean for employees and businesses in the future? It remains to be seen how much these programs will actually cost employees and whether eventually the cost will be shifted onto or shared by employers. Also, it looks like the push for paid leave is picking up momentum so if you currently live in a city or state that does not have such laws, one is likely coming soon. Employees should learn about what programs exist or are being lobbied for in your city and state. If you need a leave, make sure you ask your employer about what leave laws and benefits are available as part of your planning process. Employers need to make certain your policies are in compliance with current laws where you engage workers. You also may want to begin thinking about how and whether additional paid leave requirements will impact your current leave policies and your bottom line. Start a dialogue within the organization and with your attorney so that proactive steps can be taken to ensure you are ready when the time comes. Swartz Law can help navigate these issues and develop a plan to ensure compliance. To contact us now click here.