Unlike Europe, Canada, Japan, and most economically advanced nations around the world, the United States is an outlier when it comes to paid family or medical leave. The U.S. is one of the only economically advanced countries without some type of legislation mandating paid family or medical leave for employees. Despite this anomaly, there is a growing trend among U.S. states and municipalities to require paid family and/or medical leave to certain employees. This trend builds upon the unpaid leave laws in the U.S., namely, the Family Medical Leave Act, and the expansions thereof implemented by state and local governments. The topic of paid leave has recently made headlines with respect to the U.S. presidential election, as both Democratic and Republican candidates have proposed their own paid leave plans should they be elected in November. As an employer, it is vital to understand the current federal and local leave laws as they apply to your business, and to be aware of potential changes in the law. Without delving into the intricacies of the FMLA, its state and local counterparts, and perhaps the hairiest subject of them all, politics, here are some general questions you should be asking yourself as an employer:
1. What is the FMLA, and how does it apply to my business?
The Family Medical Leave Act (“FMLA”) is a national law that provides up to twelve weeks of unpaid, job-protected leave during a twelve-month period to (1) care for the employee’s newborn, adopted or foster child; (2) to care for the employee’s family member; or (3) to care for the employee’s own serious medical condition. The law provides a base-line requirement for family or medical leave, and allows states to set more expansive standards. The “job-protected” feature of the FMLA means that employers cannot fire an employee for taking such leave, and cannot take any other adverse employment action on that basis. After an employee returns from leave, he or she must be restored to the same or an equivalent position, except in limited circumstances. The FMLA applies to private employers with fifty or more employees within a seventy-five mile radius.
2. Has my state expanded the FMLA standards for unpaid leave?
This question will depend on where you and your employees conduct business. Therefore, consulting an attorney who understands your state’s employment law is key. Some states that have expanded the standards for unpaid leave are California, Connecticut, Rhode Island, Maine, New Jersey, and Vermont. These states and others who have expanded the standards for unpaid leave have done so by either (1) increasing the amount of leave-time, (2) including more people for whom an employee may take leave, (3) setting additional standards for businesses with more or less than fifty employees, or (4) a combination of some or all of the above expansions. For example, Maine’s unpaid leave laws applies to employers with only fifteen or more employees, and also provides for leave to be an organ donor. Connecticut allows up to sixteen weeks of family or medical leave in a span of two years for employees of businesses with seventy-five or more employees. With so many variations on how federal unpaid standards are expanded, it is important to consult counsel to ensure that your business is complying with all of your state’s leave laws.
3. Which state or local governments have implemented paid leave laws?
Currently, three states have implemented paid family and medical leave laws. California, New Jersey, and Rhode Island all offer paid family and medical leave. In 2018, New York’s Paid Family Leave Benefits Law will go into effect and join the growing wave of updated family leave laws. With respect to paid sick leave, California, Connecticut, Massachusetts, Oregon, and Vermont have implemented legislation requiring employers to provide paid sick leave to their employees. In addition, Seattle, Washington, New York, New York, several cities in New Jersey, and number of other municipalities have established laws mandating paid sick leave. Similar to unpaid leave laws, each state or city has its own rules regarding the application of such laws, so consulting an attorney is integral to understanding your rights and obligations as an employer.
4. What changes should I look out for in the near future with respect to leave laws in the U.S.?
It is always important stay up to date when it comes to the laws that affect your business and your employees. Recently, the media has focused on the 2016 U.S. presidential campaign and the proposals (and colorful attributes) of each candidate. In the realm of family and medical leave, each candidate has a plan that involves federally funded leave for certain employees. Hillary Clinton’s plan guarantees up to twelve weeks of paid family and medical leave to care for a new child or a seriously ill family member, and up to twelve weeks of medical leave to recover from a serious illness or injury of their own. The Democratic candidate further proposes that an employee on paid family or medical leave will earn at least two-thirds of his or her current wages, capped at a certain amount. Her plan for funding paid leave is to reform taxes.
On the Republican front, Donald Trump’s plan provides for six weeks of paid maternity for employees whose employers do not offer paid maternity leave. He proposes that the plan will implemented by amending the existing unemployment insurance that companies are required to carry, and paid for by offsetting reductions in the program.
5. What’s the takeaway?
No matter the outcome of the 2016 election, it is likely that the U.S. will undergo significant changes with respect to family and medical leave laws in the coming years. The key is to stay informed: consult an attorney to know which federal and local laws apply to your business and understand your rights and obligations underneath them, as well as the rights and obligations of your employees. Keep abreast of new laws on the horizon and make sure that your business is prepared.
This article provides only a basic summary of the various aspects of family and/or medical leave under U.S. law. Consult an attorney for specific and individualized advice tailored to the needs of your business.
No Legal Advice or Attorney-Client Relationship
The information and materials available in this article are for informational purposes only and are not intended to and do not constitute legal advice, a solicitation for the formation of an attorney-client relationship, or the creation of an attorney-client relationship. The information provided may not apply to your particular facts or circumstances; therefore, you should seek legal counsel prior to relying on any information that may be found in this article. Furthermore, information provided in the article may not reflect the most recent and/or all developments in the law.