by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
April 12, 2021
In the legislative system, conflicting leave laws are considered especially heinous . . . [DHUNK DHUNK]
OK, so paid family and medical leave is not as riveting as stories ripped from the headlines. Or is it? I mean, these are actual headlines, aren’t they? Or am I just a Superfan?
We last left our heroes, those beleaguered leave and benefits administrators in your Human Resources Department, hoping that the feds would act to solve the multi-state PFML morass. In that episode, we explained why a federal paid leave law would not be the panacea we would like. Now let’s look at what is currently proposed at the federal level, and consider what paid leave and absence management would be like with that law thrown into the mix.
You will no doubt remember (who wouldn’t?) that New York Senator Kristen Gillibrand and Connecticut Representative Rosa DeLauro have introduced companion federal paid family and medical leave bills every legislative session since 2014. This year is no exception: SB 248 and HB 804, respectively.
The bills are referred to as the Family and Medical Insurance Leave Act, or the FAMILY Act, but don’t let the name fool you. There is no job protected leave associated with the FAMILY Act and, for reasons discussed below, the use of FAMILY Act benefits will not always coincide with coverage under the federal Family and Medical Leave Act (FMLA) we’ve come to know and love.
Here are the key features (but don’t expect the minute details yet – the legislation is particularly obtuse in many respects):
- Entitlement. The total amount of paid leave is 60 “caregiving” days in a 365-day benefit period, following an unpaid waiting period of 5 caregiving days. §4(a); §2(10); §2(5). A caregiving day means any date the employee is engaged in an activity that qualifies him or her for paid leave (see next bullet point). §2(1). This is similar to the FMLA’s 12 workweeks but will not correspond in many cases because:
- The 5-day waiting period means FMLA will start for an eligible employee before the countdown for 60 caregiving days.
- The 365-day benefit period is calculated on a measured-forward basis tied to a certain date in relation to the paid leave (and that date is one of the obtuse parts of the law). §4(c)(1) and (2). The benefit period will never coincide with an FMLA leave year, which as we know can be measured in one of four ways: calendar year, fixed 12-month period, measured forward from first date of leave, or rolling back from first date of leave.
- Because the paid benefit entitlement is measured in caregiving days, it appears the benefits are available only in full-day increments, not in increments of an hour or less as with the FMLA. As a result, an employee could take intermittent FMLA leave and not touch any or most of his FAMILY Act entitlement.
- Now think about continuous leave for anyone with a work schedule other than 5 days per week. For example, if an employee works 3 12-hour shifts per week and takes continuous leave for 12 calendar weeks, the employee will exhaust her FMLA entitlement but have only used 36 caregiving days, leaving 24 more caregiving days available.
- Benefit reasons. Pay benefits are available for “qualified caregiving,” which includes most of the same reasons as leave under the FMLA: the employee’s own serious health condition (SHC); caring for a family member with a SHC; birth and bonding with a new child; placement of a child for adoption or foster care and bonding; and qualifying military exigencies. Leave specifically to care for an ill or injured servicemember is excluded from benefits, but depending on the employee’s relationship to the servicemember, such leave will often qualify as care of a family member with a SHC. §2(6).
- Covered family relationships. Care for a family member with a SHC includes the FMLA relationships of parent, child, or spouse, but also includes a domestic partner and the child of a domestic partner. §2(6) and §4(j). Leave taken during receipt of benefits for these two relationships will not count toward an employee’s FMLA leave usage.
- Employee eligibility. Eligible employees include anyone who is insured for disability insurance benefits under the Social Security Act at the time of the application for benefits; and has earned income from employment during the 12 months prior to the month in which an application for benefits is filed. §4(a)(1)-(2). That’s clear as mud, isn’t it? Does that mean earned income in each of the prior 12 months, or at any time during the prior 12 months? I haven’t studied the SSA eligibility requirements yet, but they are . . . unlikely? . . . to coincide with eligibility for FMLA leave (12 months of service, 1250 hours worked in the past 12 months, and engaged at a worksite with 50 employees within 75 miles).
- Benefit amounts. Monthly benefits are determined according to a formula that I, quite frankly, have not figured out yet. Here, you have a crack at it: “Benefits are the greater of . . . the lesser of 1⁄18 of the wages [in the highest of the last 3 years] . . . or the minimum benefit amount . . . multiplied by the quotient (not greater than 1) obtained by dividing the number of caregiving days of the individual in such month by 20.” Or something like that. §4(b).
I can tell you this much: during the first calendar year of the program the maximum benefit is $4,000 per month and the minimum benefit is $580 per month; amounts are adjusted annually based on the national average wage index. The benefit amount per day of Qualified Caregiving is the employee’s monthly benefit divided by 20 (apparently, regardless of how many work days there actually are in the month). §4(b).
- Funding. The benefits available under the FAMILY Act are funded by contributions from the employee and employer each of 0.2% of the employee’s wages, limited by the Social Security cap. §6(a) and (b).
So now, let’s revisit the prior topic, “If only the feds would act!” Whaddaya think? Is this bill the answer to the multi-state PFML morass?
Remember, this discussion doesn’t even begin to address the conflicts between the FAMILY Act and existing state PFML laws, such as differing leave reasons, family relationships, durations, employee eligibility, and so on.
SO WILL THESE BILLS PASS?
Well, let me see. They, or something very much like them, have been introduced for 5 U.S. legislative sessions now. This year, we have President Biden who has spoken in favor of paid leave in a variety of contexts. But we have a 50-50 split in the Senate and big, important bills coming and gone. Would enough Dems hold the line to pass something like this? In COVID Year II? Then again, the legislative session is 2 years long, so these bills are likely to linger into 2022 if they don’t pass in 2021. The political climate might be more amenable then. Maybe.
Hey, I guess this is as exciting as a Law and Order episode! I’m headed to Hulu for a brain break!
MATRIX CAN HELP!
We are committed to watching and understanding all things PFML – state and federal. Stay tuned for our periodic blog posts as developments warrant, and watch of our next installment of the Multi-state Morass.