Editor's Note: This article was completed prior to and does not specifically cover paid leave as it pertains to the coronavirus pandemic. At this time, the employee leave laws passed as part of COVID-19 relief efforts are not permanent, but enacted as a crisis relief measure.
The passage of the Family and Medical Leave Act (FMLA) in 1993 marked the beginning of mandatory leave in American workplaces. Prior to that, the decision of whether leave for any purpose was granted to an employee was totally at the discretion of the employer.
The FMLA, which applies to employers with 50 or more employees within a 75-mile radius, provides up to 12 weeks of unpaid leave per year for certain specified purposes. The leave may be taken for the birth or adoption of a child as well as for a “serious” medical condition of the employee or a close family member. It may also be used intermittently if the medical condition creates the need for periodic absences.
Over the years, there have been numerous legislative proposals to reduce the coverage threshold to 25 employees, as well as to provide some level of compensation during the leave. None of the proposals have gone much beyond the talking stage; yet the pressure to provide mandatory paid leave remains. A 2018 Rasmussen poll found that 51% of Americans believe that the government should require employers to provide 12 weeks of paid family and medical leave. Only 29% of respondents disagreed.
President Donald Trump has supported the concept of paid family leave since his days as a presidential candidate. He reportedly favors a 6-week paid leave requirement. His daughter, Ivanka Trump, has been a strong advocate for paid family leave. She has worked with Sen. Bill Cassidy, a Republican from Louisiana, to build support in Congress.
Although there seems to be a growing agreement in general on the concept of paid leave, there has been little progress in developing legislation that would garner the bipartisan support needed for passage.
In 2018, Sen. Marco Rubio, a Republican from Florida, proposed a bill that would have permitted parents to apply for at least 2 months of paid leave by delaying receipt of Social Security benefits. Due to concerns that such use of future Social Security benefits might erode the program and/or lead to use for other nonretirement needs, such as repayment of student loans, the proposal made little progress.
In 2019, Sen. Rubio was joined by Sen. Mitt Romney, a Republican from Utah, in proposing “The New Parents Act of 2019,” with essentially the same provisions as Sen. Rubio’s 2018 proposal.
Republican Sens. Joni Ernst of Iowa and Mike Lee of Utah joined in a proposal similar to that of Sen. Rubio in 2018. In 2019, the two proposed “The Child Rearing and Development Leave Empowerment (CRADLE) Act”, which is similar to that of Rubio and Romney. Democratic Sen. Kirsten Gillibrand, of New York, has proposed a model that is funded by a payroll tax. On July 30, 2019, Democratic Sens. Kyrsten Sinema of Arizona and Republican Senator Bill Cassidy of Louisiana put forth the first bipartisan proposal, “The Advancing Support for Working Families” bill. It would not mandate leave, but would provide access to $5,000 through advancing the annual child tax credit.
Since all of the Democratic presidential hopefuls have voiced support for paid leave, and President Trump has also indicated support for some limited form of paid federal leave, legislative action could come irrespective of who occupies the White House and what party controls Congress after 2020.
As has been seen on the issue of the minimum wage, when the federal government fails to act or is slow to do so, states often step in to address the matter. Paid family leave is an issue on which several states have enacted legislation. Currently, seven states—California, Connecticut, Massachusetts, New Jersey, New York, Rhode Island and Washington—along with Washington, D.C., provide paid family and medical leave. In addition, as of Jan. 1, 2021, Maine employees will be eligible for leave for any purpose, although it will be limited to 40 hours per year.
All of the states and Washington, D.C., have dollar maximum limits on wage replacement during leave. In most cases the maximum amount allowed is tied to the state’s average weekly wage.
Thus far, it has been exclusively blue states that have adopted paid family leave, but more, including some red states, are sure to follow in the absence of federal action on the issue.
Paid Sick Leave
There is currently no mandatory sick leave (paid or otherwise) under federal law. As we have seen in the case of paid family leave, several states have adopted mandatory paid sick leave programs. Currently, six states require paid sick leave—California, Connecticut, Massachusetts, Oregon, Vermont and Washington. Generally, the leave is limited to accrual of 40 hours per year.
The leave time is paid at the employee’s normal hourly wage rate. Proposals for federally mandated paid sick leave are frequently discussed in Congress, but definitive federal action on the issue has been slow to develop. However, state action requiring some level of paid sick leave is sure to continue. In addition, a growing number of cities have adopted mandatory paid sick leave.
The laws adopted by the Texas cities of Austin, Dallas and San Antonio are currently under legal challenge. In California, most major cities have adopted paid sick leave laws. Major cities in other states, such as Seattle, Washington; Chicago, Illinois; Minneapolis, Minnesota; St. Paul, Minnesota; Philadelphia, Pennsylvania; Pittsburgh, Pennsylvania; and New York, New York; have done so as well.
Before the advent of the mandatory FMLA at the federal level, leave was essentially taken for personal (including medical) reasons and generally dictated by an employer’s policies. Employers were under no legal obligation to provide leave, even for such legitimate personal issues as medical problems of the employee or an immediate family member.
Even today, employers with less than 50 employees are not subject to the leave mandated by the FMLA. Leave was almost always unpaid, with the possible exception of some progressive employers’ sick leave policies or those negotiated as a benefit in a collective bargaining agreement.
Virtually all employers today permit employees to take unpaid personal leave for a variety of reasons, including medical needs. However, it is generally limited to some specified period and generally only granted for good reason. Mandatory limits on maximum personal leave available have come under scrutiny recently as potentially violating the Americans with Disabilities Act.
In some cases, a medical condition will require extended time off. If the employee suffers from a disability, additional leave beyond the employee’s normal maximum could be legally required as a reasonable accommodation. As a result, some employers have eliminated maximum leave rules and deal with the issue on a case-by-case basis.
Difficult Leave Issues
The granting of employee leave, whether FMLA or otherwise, brings with it certain recordkeeping issues that can be troublesome for employers. FMLA leave certification requirements, for example, is one area where employers sometimes falter, despite the fact that the law requires strict compliance. Upon becoming aware of the possible need for FMLA leave, the employer must notify the employee if medical certification for leave is required.
The notice should be included in the written “Rights and Responsibilities Notice” that is required to be given to the employee within 5 days of becoming aware of the employee’s need for FMLA leave. The employer must also notify the employee in writing if the leave will or will not be covered by FMLA. It is fairly common for employers to fail to give all of the required notices.
Failure to give proper notice is one of the types of technical violations that could pose problems if challenged. Notice problems can often be avoided if the employer consistently utilizes the forms made available by the Department of Labor (dol.gov/general/forms). They contain all of the required information and are a sure way of tracking compliance.
Employer requests that an employee on FMLA leave recertify the continuing need for leave have also created legal problems for employers. An employer has the right to request that the employee provide recertification of their serious health condition or the serious health condition of their family member. However, there are limitations to them.
A recertification request may be made no more frequently than every 30 days, and only when the employee is actually absent or has requested to be absent. If the initial certification indicates the minimum duration of the serious health condition will be beyond 30 days, the employer must wait until the minimum duration expires. However, an employer is permitted to request a recertification every 6 months.
Some employers, suspecting that the “serious health condition” may be less than represented, request recertification within days or weeks of leave beginning. Absent some objective evidence of fabrication or similar circumstances, this could constitute unlawful interference with the employee’s FMLA rights.
FMLA Absences & Attendance Policies
One final area of employer difficulty in managing employee leave relates to the interplay between FMLA-related absences and attendance policies. The problem frequently arises where the leave is being taken on an intermittent basis.
Legitimate FMLA-related absences from work cannot be considered violations of an attendance policy. However, employers may require their employees using FMLA leave on an intermittent basis to comply with the usual absence notice or call-in procedures, unless the employee in question is medically unable to do so.
Failure to properly give notice of a need to be absent, even if it relates to a serious medical condition for which the employee has been granted intermittent leave, can result in lawful disciplinary action against the employee. In an effort to avoid confusion and properly track FMLA-related absences, some employers have gone so far as to provide separate telephone lines for reporting absences.
An employee who will be absent making use of intermittent FMLA leave would give notice of the FMLA-related absence on one line and also be required to call a separate line normally used to give any mandatory absence notice. Such a procedure is more common with large employers who frequently have a number of employees eligible for intermittent leave. Whatever notice procedure an employer decides it will follow, it is clear that employees on FMLA leave can be required to comply with normal call-in procedures or be held accountable.
As mandatory leave laws continue to proliferate, employers will increasingly be confronted with the demanding and sometimes complex obligations that apply under such laws. Consistent compliance will pose an even greater challenge.