Labor & Employment Law Daily DOL soliciting information on paid family and medical leave
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Friday, July 17, 2020

DOL soliciting information on paid family and medical leave

By Pamela Wolf, J.D.

The DOL hopes to “identify promising practices related to eligibility requirements, related costs, and administrative models of existing paid leave programs.”

The Labor Department is seeking information on paid leave—specifically, paid family and medical leave to care for a family members, or for one’s own health. In a request for information scheduled for publication in the Federal Register on July 16, the DOL wants to gather information on the effectiveness of current state- and employer-provided paid leave programs and how access or lack of access to paid leave programs impacts U.S. workers and their families.

The DOL said that this information will help “identify promising practices related to eligibility requirements, related costs, and administrative models of existing paid leave programs.”

Paid leave availability. The DOL cited several studies related to the availability of paid leave and its impact on women in the workforce, including 2019 Bureau of Labor Statistics report finding that 18 percent of U.S. private sector workers had access to paid family leave through their employers. “A number of studies have linked paid family leave of differing types to increases in a mother’s likelihood of being employed after childbirth, female labor force participation, and women’s wage earnings and work hours,” according to the DOL. A 2011 Census Bureau report found that women using paid parental leave were twice as likely to return to work within three months; most returned with similar hours and pay, the DOL noted.

Benefit concentrated in high-skilled, high-paid industries. While some employers believe that paid leave is a valuable tool to recruit and retain talented workers, the availability of paid leave is mainly concentrated among high-skilled and highly-compensated industries, the DOL said. According to a 2017 study by the Boston Consulting Group, employer-provided paid family leave has grown most in private sector jobs that recruit highly skilled workers. Employees in the top income quartile were three and a half times more likely to have access to paid leave than employees in the bottom income quartile.

More than half of low-income workers did not receive paid leave from their employers, according to a report the DOL commissioned in 2012. About 18 percent of individuals in higher-income families received no pay during leave compared with 53 percent of low-income workers who received no pay during leave. According to a 2017 Pew report, many workers with household incomes under $30,000 who took leave without full pay for the birth or adoption of a child faced financial challenges as a result.

Worker leave laws. Turning to, among other things, existing worker leave laws, the DOL pointed to a 2012 DOL-commissioned report finding that 59 percent of all workers had access to unpaid leave through the federal Family and Medical Leave Act.

The department also observed that some states and localities, including California, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island, and Washington, have enacted paid family and medical leave laws that give covered workers the right to partial wage replacement through a state-run insurance program when they are not working due to their own or a family member’s serious health needs or bonding with a new child.

On December 20, 2019, President Trump signed into law a new paid parental leave policy for eligible federal workers as part of the 2020 National Defense Authorization Act.

There is also the Families First Coronavirus Response Act (FFCRA), which requires certain employers to provide employees with paid sick leave or expanded family and medical leave for certain COVID-19-related reasons. However, these provisions only apply from April 1, 2020 through December 31, 2020.

Soliciting information. The DOL is looking for input from stakeholders, employers, and employees on the benefits of paid leave for workers and their families within the following general framework. In broad terms, the Department wants to understand:

1. The benefits of paid leave, the costs of paid leave, and the measurement of costs and benefits.
2. The beneficiaries of paid leave and the bearer of the costs.
3. The unique needs of workers and employers in regard to paid time off for care obligations. The features of the existing public (e.g., state-administered) and private (employer-provided) programs that work well, reasons those features work well, and features and provisions that make a paid leave program successful for all stakeholders.
4. The features of the existing public and private programs that do not work well or are burdensome, the reasons why, and any features and provisions that present challenges for stakeholders.
5. Answers to these questions:
a. Are there barriers to implementing or improving paid leave?
b. Are there regulatory barriers to providing paid leave?
c. What could be done to improve existing programs, which include state and employer-sponsored paid options?
d. What are the impediments, costs and otherwise, faced in implementing those improvements?
6. The challenges of balancing costs and benefits with paid leave and the differences in costs and benefits among types and sizes of employers, including small businesses.

These question are intended to frame responses; comments on other paid leave issues are also welcome.

Other questions. In its request for information, the DOL also posed 23 additional questions asking commenters to identify barriers or policies and to indicate, with a citation if possible, the source/level (e.g., federal, state, local) of the barrier or policy, as well as the types of leave (e.g., parental leave for the birth or adoption of a child, care for a seriously ill family member, the employee’s own serious illness, and/or other leave) that is impacted.

The final question asks: Are there key insights to be taken from the FFCRA?

Comments. Comments must be submitted within 60 days after the DOL’s information request is published in the Federal Register. Instructions for submitting comments are detailed in the notice.

“Expanding workplace flexibility has long been a priority of the Women’s Bureau,” Director Dr. Laurie Todd-Smith said in a press release. “Paid leave may also be valuable in enhancing the upward mobility of women workers and the well-being of American families. The Women’s Bureau is interested in hearing from employers, employees, and other interested parties about the impact of various types of paid leave programs for employees of different income levels and employers of different sizes.”

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