Benefits and Compensation

Paid Leave: Coming to a Jurisdiction Near You?

Although the federal government may not go for paid leave, many entities and jurisdictions are taking it up on their own, says Susan G. Fentin, a partner with Skoler, Abbott & Presser, P.C. in Springfield, Massachusetts. Fentin’s Commonwealth of Massachusetts does have a paid leave law, and she shared her perspective on paid leave at BLR’s Advanced Employment Issues Symposium, held recently in Las Vegas.

Earn while you learn

Breaking News

Fentin shared several examples of recent paid leave activity:

  • Chobani gives 6 weeks paid parental leave to all workers.
  • New Illinois law requires employers covered by the Family and Medical Leave Act (FMLA) to provide 10 working days of unpaid bereavement leave for death of child.
  • City of Chicago will require accrual of 40 hours of paid sick leave for all employees.
  • Illinois also passes “family caregivers” law that permits employees to use accrued personal sick time to care for ailing family members.
  • SLM Corp will expand parental leave policy to offer up to 12 weeks of paid leave to new and adoptive parents.

But, Fentin points out, there is anti-paid leave activity as well:

  • The California governor vetoed unpaid family leave expansion.
  • The Minnesota Chamber of Commerce filed suit challenging a Minneapolis ordinance requiring accrual of up to 48 hours of paid sick leave; St. Paul’s similar ordinance is also likely to face a challenge.

Paid Leave Movement

There is momentum behind paid leave, Fentin says.

  • The United States is only one of three countries in the world without a paid maternity leave policy—United States, Oman, and Papua New Guinea.
  • Before 2014, there were only four state paid leave laws; now there are more than 30 laws and ordinances, including six state laws: Washington, D.C. (2008); Connecticut (2012); California (2015); Massachusetts (2015); Oregon (2016); and Vermont (2017).

City and County Ordinances

Local entities are also passing paid leave laws:

  • California: San Francisco, Oakland, Emeryville, San Diego, Los Angeles, and Santa Monica (1/1/17)
  • Maryland: Montgomery County
  • Minnesota: Minneapolis (7/1/17), St. Paul
  • New Jersey: Jersey City, Newark, Passaic, East Orange, Paterson, Irvington, Montclair, Trenton, Bloomfield, Elizabeth, New Brunswick, Plainfield, and Morristown
  • New York: New York City
  • Pennsylvania: Philadelphia
  • Washington: Seattle, SeaTac, Tacoma, Spokane (1/1/17)

States Blocking Local Paid Leave

On the anti-paid leave side, some states have passed laws blocking local paid sick leave ordinances, including: Alabama, Oklahoma, North Carolina, Florida, Arizona, Louisiana, Mississippi, Tennessee, Kansas, Wisconsin, and Georgia.

Benefits of Paid Sick or Family Leave

Fentin offers the following benefits of paid plans:

  • Paid leave improves the health and well-being of parents and children.
  • Fathers and children also benefit from paid leave.
  • Paid leave helps caregivers arrange care for their families.
  • Paid leave means families are less likely to use public assistance.
  • Workers are more likely to stay in the workforce.
  • Retention will improve, and turnover will drop.

Some companies that have developed plans:

  • Patagonia offers 8 weeks of paid FMLA leave.
  • Nike provides 8 weeks of family caregiving leave to full-time employees and an additional 6 weeks for new mothers.
  • Spotify offers up to 6 months of paid leave to new mothers and fathers to help attract and retain quality talent.

One company reports significant results:

  • After increasing paid maternity leave from 12 to 18 months, Google saw their retention rate for new mothers increase by 50%.

First, Check the Law

The first thing to do, says Fentin, is to determine which paid leave laws apply to which of your people.

Coverage may depend on employer’s location, size, or even industry. For example, in Massachusetts, the paid leave requirement applies to organizations with 11 or more employees and applies to all workers (temp, per diem, seasonal, etc.). On the other hand, in Connecticut, the paid leave law applies only to Connecticut “service workers” for organizations with over 50 employees, and it does not apply to temporary workers.

Specific Legal Requirements

The next step is to delve into the specific legal requirements of the laws that apply to your people, Fentin says. Laws may differ in critical elements, such as :

  • Eligibility
  • Qualifying reasons for leave
  • Covered family member
  • Leave accrual and usage
  • Notice and documentation
  • Compensation rate

Review Policies

The next step, Fentin says, is to review your existing policies—is a new policy required?

  • Employers subject to paid leave laws must create a new, compliant policy or must use or modify an existing paid leave policy, says Fentin—but these situations will almost always require some modification of existing policy. If you decide to modify an existing policy, consider the following, she says:
  • Conduct a side-by-side comparison of your policy vs. local or state paid leave law.
  • Ensure that your policy provides as much leave as the law (or more).
  • Ensure that your policy meets the law’s requirements for eligibility, accrual, use, and other conditions.

For multistate employers, Fentin recommends the following:

  • Consider all of the legal requirements for paid leave in each jurisdiction.
  • Consider eligibility, reasons for leave, covered family members, leave accrual and usage, notice and documentation, compensation rate, carry over, and payout at termination.
  • Decide whether to comply with specific terms of each state/local law or to create a universal paid leave policy.

Also, Fentin says, consider these other practical issues:

  • Will you separate sick leave entitlements from vacation and other paid time off (PTO)?
  • Is there additional guidance from your state/locality?
  • Are there language requirements for notices, policies, and posters?
  • Can/should an employer frontload paid leave?
  • What about treatment of new paid leave requirements in policies and handbooks?
  • What about your unionized workforce? Is there a collective bargaining agreement?

Seek Experienced Employment Counsel

Fentin strongly recommends that you seek the assistance of an experienced employment attorney for help with paid leave implementation. It is not a job for your corporate attorney or your real estate attorney, she says.

Other Policies that May Be Implicated

Don’t forget other policies that may be affected by paid leave implementation, says Fentin.

  • Attendance/occurrences—watch out for policies that penalize or discipline on the basis of absences.
  • Unplanned absences.
  • Unscheduled absences.
  • Holiday pay—be careful of policies that restrict day before or day after leave.
  • Call-out policies.
  • FMLA—does statute permit exhaustion?
  • Bonus programs.

Tips for Managing Paid Leave Admin

  • Plan for costs and implications of paid leave implementation and administration:
  • Use of new notices and new posting requirements;
  • Ensuring that absence control policies do not penalize employees for protected paid sick leave;
  • Protecting employee confidentiality;
  • Mechanisms for tracking leave accrual and use;
  • Complying with reporting requirements (in select jurisdictions); and
  • Additional costs associated with the availability of new paid sick leave time and compliance requirements.
  • Develop tracking system.
  • Hold employees accountable.
  • Document communications with employees—Why are you out? When did you realize that you won’t be able to come to work today? When do you expect to be able to be back at work?

Don’t Forget Training!

New paid leave laws represent a change in how things are done, so consider training on paid leave basics, leave requests, certification, documentation and tracking, and return from leave.

All HR personnel should receive training as well as supervisors who manage employee leave. Supervisors must be reminded that they cannot penalize employees for protected leaves, and they cannot exhibit their frustration.

The U.S. Department of Labor has a helpful document: “A Sound Starting Block: Why Paid Leave is a Winning Policy.”

Federal Contractors: Paid Sick Leave

For federal contractors, be aware of Executive Order (EO) 13706 which is effective January 1, 2017. Find out more:

  • Overview of final rule at https://www.dol.gov/sites/default/files/PaidLeaveFi nalRule2016.pdf
  • Fact Sheet at https://www.dol.gov/whd/govcontracts/eo13706/PaidLeaveFS.pdf
  • Poster at https://www.dol.gov/whd/regs/compliance/wh1090.pdf

Paid Leave Checklist—Lessons from Massachusetts

Fentin offers the following checklist for all employers dealing with paid leave issues.

  • Does the law apply to all employers? If not, how is employer size determined?
  • Restrictions on holiday pay?
  • Can sick leave be carried over?
  • What type of medical documentation can be required?
  • What if the employee doesn’t have a healthcare provider?
  • What type of penalties can be assessed for abuse? Failure to provide documentation?
  • Must paid sick leave be paid at time of termination?
  • What rate of pay applies if the employee works two separate rates?
  • Can the employee call out from voluntary overtime (OT) and receive an OT rate?
  • What kind of advance notice can the employer require?
  • Can the employee use the leave on Day 1, or is there a minimum employment requirement?
  • Is there a break-in-service provision?
  • Does the statute specify calendar year? What if your leave policies are managed on a different year?
  • Does the employee have to specifically request sick leave, or is it more like an FMLA request where the burden is on the employer if the employee provides enough information from which the employer could determine that sick leave might apply? [Note: Supervisor training!]
  • How are family members defined? FMLA definitions?
  • What if the employee only works part of the time in the area covered by the law? Does he or she accrue for hours worked outside of that area?
  • Can you require an employee receiving paid leave to exhaust that paid time while on FMLA or other legally required leaves?
  • Does the statute specify the minimum amount of time that can be used?
  • What about bonuses for perfect attendance? Are these permissible under the law?
  • Can an employee make up sick time?
  • Can an employer require an employee to find a replacement?
  • How will you handle unscheduled absences?
Steve BruceStephen D. Bruce, Ph.D., PHR is an award-winning writer and editor, who has been following and clarifying developments in the HR field for 20 years.