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During the COVID-19 pandemic, paid leave emerged as a critical policy issue in state legislatures all over the country. Now, with the pandemic retreating in the rearview mirror, the paid leave landscape is changing, but the issue remains just as popular with state lawmakers nationwide.
While specific paid leave statutes related to COVID are sunsetting, lawmakers in at least 44 states have introduced more than 300 measures related to the issue since the beginning of 2023, reflecting the fact that paid leave as a policy issue had momentum with lawmakers even before the pandemic.
As Alison May, senior policy specialist for the National Conference of State Legislatures®, noted in a white paper published in the thick of the pandemic in the fall of 2020, paid leave had garnered “national attention and bipartisan congressional support in recent years,” even as the United States remained the only developed nation without a national paid leave policy.
Until that changes, paid leave figures to be a hot topic for state legislatures from coast to coast.
Paid leave legislation generally falls into two major buckets: laws governing paid sick leave and laws governing paid family and medical leave.
But lawyer Elias Kahn, senior product manager for labor & employment, tax and employee benefits and executive compensation on the LexisNexis® Practical Guidance Team, said a third key bucket looms on the horizon: paid leave for any reason.
In May 2019, Maine became the first state in the nation to require private employers to provide paid leave for any reason when Gov. Janet Mills (D) signed LD 369. Nevada followed a month later, in June 2019, when then-Gov. Steve Sisolak (D) signed SB 312, which also granted paid leave for any reason.
Illinois is poised to join their ranks on January 1, 2024. In March 2023, Gov. J.B. Pritzker (D) signed SB 208, which says that beginning on January 1, 2024 private employers must offer their workers five days paid time off for any reason after they’ve completed a 90-day probation period.
“Working families face so many challenges, and it's been my mission to alleviate those burdens in every way I can,” Pritzker said at the time of the bill’s signing. “Today, we will become the third state in the nation to require paid time off, and the first among the largest states. Employers benefit from allowing employees to tend to the urgent personal matters of their lives. Workers' productivity increases, and they often gain greater passion for their job when they can manage the stresses they face outside work. I'm exceptionally proud that labor and business came together to recognize the value of this requirement to employees and employers alike.”
Kahn suspects Illinois’ adoption is just the beginning of a new trend.
“Crystal ball: I predict we’re going to see more of these paid-leave-for-any-reason statutes,” he said.
Lawmakers in at least 44 states have introduced over 300 measures referring to “paid leave” this year, according to the LexisNexis® State Net® legislative tracking system. Half of those states have enacted or adopted such measures.
Kahn said it’s particularly difficult for employers to abide by paid leave statutes because local governments increasingly are implementing their own laws, separate and apart from state laws.
Some states have preemption laws, that prevent local governments from enacting their own paid leave laws, but many do not. That can make things complicated in red states with blue cities: the conservative-leaning state may set one standard for paid leave (or offer no paid leave at all), while the progressive-leaning cities may set much more stringent benchmarks.
It can also make things complicated in states where both the state legislature and the cities are blue. In California, for example, eight cities have their own paid sick leave laws – on top of the state’s paid sick leave law.
So, as Kahn noted, if you’re an employer operating out of Long Beach, California, you need to make sure you’re abiding by both the California paid sick leave statute and the Long Beach city sick leave statute.
Local jurisdictions with paid leave laws include, among others, Cook County and the city of Chicago in Illinois; Montgomery County in Maryland; New York City; Allegheny County and the cities of Pittsburg and Philadelphia in Pennsylvania; the cities of Minneapolis, Saint Paul, Bloomington and Duluth in Minnesota; and Seattle, Tacoma and SeaTac in Washington.
“Wading through the maze and moving parts of federal, state, and local paid family medical leave and sick leave laws can be a confusing process for business owners,” the Houston-based human resources company G&A Partners said in an article about paid leave.
Lawyer Dave Berndt, HR Project and Training Manager for G&A, said: “Employers should be familiar with the requirements of each jurisdiction in which they operate and make sure they comply with paid leave regulations, so they don't unintentionally do something that comes back to bite them. It can be challenging.”
Perhaps the biggest question surrounding paid leave is whether the federal government will ever enact a nationwide policy.
As late as this year, President Joe Biden was pushing for a nationwide paid leave policy, saying: “It's about being a country where women and all people can both work and raise a family. How can we compete in a global economy if millions of American parents, especially moms, can't join the workforce?”
The president's proposed legislation to give all Americans paid family and medical leave was nixed largely by Republicans in Congress who said it was too costly.
But Biden’s administration makes it clear that paid leave remains a priority. The U.S. Department of Labor's website boldly states “It's Time to Care About Paid Leave” and also notes “Momentum is Growing” for the policy.
“11 states and the District of Columbia have laws that create paid family and medical leave programs for eligible workers,” says the DOL website, next to an interactive map showing which states those are. “Additionally, Hawaii has a law providing paid temporary disability leave to eligible workers, while Puerto Rico has laws providing paid temporary disability and maternity leave to eligible workers. Three states, New Hampshire, Vermont and Virginia, have voluntary programs that allow some workers and employers to purchase private family or medical leave insurance.”
But unless there’s a breakthrough in Congress – and that’s difficult to forecast, to say the least – the action on paid leave is likely to remain at the state and local level. So, to stay compliant, pay attention to the policies being made close to home.
—By SNCJ Correspondent BRIAN JOSEPH
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