Speakers Explain the Changing Nature of Leave Laws

Sarasota, FL (WorkersCompensation.com) – All ‘paid leave’ is not created equally. There’s accrued leave, employer mandated paid leave, and paid family and medical leave. There’s also a trend of voluntary employer-provided leave. Trying to navigate the various leave laws can be a nightmare, especially if multiple leave laws affect an employer.  

“I find in talking to people, it’s a very complicated topic. They tend to lump all paid leave together, which makes it more complicated,” said Ellen McCann, assistant VP and Special Counsel for Unum. “Some [leave laws] put the burden on the employer, while others have a statutory plan where the person files with the state. So as an employer you really need to understand the differences to know your obligations.”

Complicating the situation even more is that some states have two or even all three types of paid leave in force, with more seeming to pop up frequently. “New paid leave laws are introduced weekly,” she said. McCann suggests stakeholders who understand how each leave law works — individually and together, have an easier time ensuring compliance with the various laws. McCann spoke on the issue of Leave Policies with Angel Bennett, Unum’s director of the Leave Management Center, during a recent webinar produced by the Disability Management Employer Coalition.

The Big Three

Aside from leave policies that employers themselves design, most fall within the three main categories.

• Accrued leave laws are passed by states. Employers are not required to provide leave in the states that have enacted this type of leave; however, if they do the employer must allow the employee to take paid leave for specific reasons. Most also are job protected. “If you do provide it, the government will tell you exactly how workers get to use that time, even if it’s not what is contemplated in your policy,” McCann advises employers.

‘Kin care’ is the term used in the very first accrued leave laws, meaning the leave can be taken to care for ill family members. States have since expanded the reasons allowed for this leave.  Oregon allows leave for workers who want to donate bone marrow. California and Minnesota allow leave for domestic violence issues. A law taking effect in Maine next month will allow veterans to take accrued paid or unpaid time off for appointments at the Veterans Administration, and their jobs must be protected.

• Employer-mandated paid leave laws are passed by states or local governments and mandate that employers must allow employees to accrue paid leave for a variety of reasons. “The government will tell you exactly how much time [employees] accrue, when they can use it and for what reasons,” Bennett said. This type of leave is also generally a job-protected absence, which she said can mean different things to different employers.

“Basically, you can’t take a negative employment action due to the person’s time off,” Bennett said. “It must be kept out of the performance management process.”

Fourteen states have passed employer-mandated leave laws as well as more than 20 municipalities. But there are vast differences in the laws.

D.C.’s employer-mandated leave law enacted in 2008 requires employers to allow up to 7 working days per calendar year for the employee’s own or a family member’s illness, preventive care and domestic violence. California’s 2015 law provides up to 24 hours per year to care for the employee or a family member. Oregon allows up to 40 hours per year and in addition to caring for himself or family members, the employee may take leave for emergency business or school closures, and bonding. Nevada and Maine allow up to 40 hours per year for any reason.

Many of the local government laws base employee eligibility and the accrual of leave on the number of hours the employee works in the city, which can create difficulties for telecommuting workers or those who have multi-city territories.

• Paid family and medical leave is different from the other two categories in that the employer is not responsible for the leave or pay. Instead, these benefits are administered by the state or an insurance company. The employee generally pays into a fund through payroll deduction and files for the benefits. These leave laws may or may not be job protected.

This type of leave is mandated in Cal., N.J., N.Y. and R.I. Also, laws have been passed and will take effect in D.C. in 2020, Mass., in 2021, Conn., in 2022, and Ore., in 2023.

Voluntary leave is being adopted by some employers regardless of whether they are legally required to do so. Wal-mart, Netflix, Unum and Twitter are among the organizations that have announced new or expanded paid leave policies in the last several years.

 “Employers may have workers in states with mandated coverage and some not and they want to achieve parity,” Bennett said. “By passing voluntary leave policy, they can integrate with all mandatory coverage and provide one set of benefits.” 

Recent Changes

In addition to the complexity and differences among the various leave laws is the fact that they change constantly. Among the new or expanded leave laws since 2018 are: 

• Employer mandated paid leave laws: Legislation has been passed in at least 8 states, while New Jersey’s state Employer Mandated Paid Leave Law preempted 13 municipal leave laws. Several municipalities also passed these laws, although some face legal challenges.
• Family and Medical Leave Insurance Programs were passed in D.C., Wash., Mass., Conn., and Ore.  New Jersey dramatically expanded its Family Leave Insurance Program. All states with these programs issued new contribution and benefit rates.
• Paid Family Leave: California removed the waiting period and added Qualifying Exigency leave to its program beginning in 2012 

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