Election 2016 – What Happens With Paid Family and Medical Leave?

by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel

November 09, 2016


The party’s over It’s time to call it a day…

Whew!  Whether you’re nursing an electoral hangover or still on an adrenaline high, it is a relief to have the election over with and return to normal life – but what is “normal” now?  What are we likely to see in the next few months or years of a Donald Trump presidency, with respect to family and medical leave and related issues? What or who will SNL parody next?  (OK, that’s beyond the scope of this blog, but I’ll be watching.)

Bottom line, no one knows yet. But we can make some guesses based on platforms and promises.

Trump’s Plan for Paid Maternity Leave.  During his candidacy Trump proposed a plan that would provide up to six weeks of paid maternity leave.  Note that term – “maternity” leave.  Trump’s proposal does not include paid bonding time for fathers, paid time off due to an employee’s own health condition, or paid time to care for an employee’s ill or injured family member.  Trump proposes to fund this benefit by amending the existing unemployment insurance companies are required to carry. The benefit would apply only when employers don’t offer paid maternity leave, and would be paid for by reducing fraud in the program so taxes are not raised.  It is questionable whether there is enough fraud that can be identified and eliminated year after year to sustain funding of this plan.

Moreover, Trump’s support for paid leave of any kind has been tepid at best.  He did not announce his plan until mid-September 2016, past the primary contests and well into the election campaign.  With both houses of Congress controlled by Republicans, it is unlikely he will receive any pressure from the legislature to move forward on this issue.  We’ll be watching closely.

Trend: Increasing Paid Leave.  No doubt, there is a trend on many fronts in favor of paid family and medical leave.

The FAMILY Act.  The Family and Medical Insurance Leave Act is pending in the U.S. House and Senate (H.R. 1439/S. 786).  This Act would provide up to 12 weeks of partial wage payment during a leave of absence for reasons that dovetail with job-protected but unpaid leaves available under the federal Family and Medical Leave Act (FMLA): an employee’s or family member’s serious health condition, bonding with a new child, and certain family military-related absences.

The FAMILY Act was introduced in March 2015, has not made it out of its first committee (House Ways and Means), and will die at the end of this Congressional session (officially, January 3, 2017) – barring unlikely extraordinary action in both houses.  Bills are often reintroduced in the next congressional session, so there is a good chance of more action on this issue in the 115th Congress.  Support among the American public and advocates is strong.  A letter of support for the FAMILY Act was submitted to members of Congress on June 29, 2016, endorsed by over 350 family-friendly organizations.  Is it possible that U.S. legislators will finally see the light and take us off the list of the few countries in the world (among them, Liberia, Suriname and Papua New Guinea) that do not provide some sort of paid family or medical leave?  Stay tuned.

State/municipal paid leave programs.  An increasing number of state governments are requiring employers to provide paid family leave, all funded by employee payroll deductions.  Here is a snapshot:

  • California: Effective in 2004; provides 55% income replacement for up to six weeks (in 2018 increasing to 60% or 70% depending on income level)
  • New Jersey: Effective in 2009; provides 67% of wages (up to $524/week) for up to 6 weeks
  • Rhode Island: Effective in 2014; provides a maximum of $752 per week, based on earnings, for up to 4 weeks
  • New York: To be effective in 2018; implementation is phased from 2018 to 2021; will ultimately provide 67% income replacement for up to 12 weeks

In addition, San Francisco has passed a paid family leave ordinance effective January 1, 2017, that requires employers with San Francisco employees to top off employees’ California paid family leave benefits to 100% of their income (subject to a cap) for 6 weeks.  In contrast to the state paid family leave plans, San Francisco requires employers to pay for this supplemental compensation without any employee contribution.

Private Company Paid Leave Plans.  The trend toward paid family leave is most notable in the policies adopted by many companies throughout the country.  A recent analysis by the National Partnership (an organization that promotes paid leaves of absence for American workers) indicates at least 46 major U.S. companies have adopted or increased paid family leave benefits in the past two years.  Most of these provide only paid parental leave, but a few – notably Adobe, Deloitte, and Discovery Communications –  include paid time off for the employee’s own health condition or to care for a family member.  The results of this analysis, which includes summaries of the 46 paid leave plans, can be found here.

MATRIX CAN HELP!  Matrix tracks state and federal legislation daily to stay on top of leave, disability, and accommodation developments.  Contact us if you have questions about what’s happening in capitol buildings and courthouses around the country, or what’s on the ballot in the next cycle.

We provide leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at [email protected].