Comments to DOL on Paid Leave

Monday, September 14, 2020 - 3:45pm

Ms. Laurie Todd -Smith
Director, Women’ s Bureau
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210

Via Electronic Submission: www.regulations.gov

RE: Request for Information; Paid Leave (RIN 1290 -ZA03)

Dear Ms. Todd -Smith:

The U.S. Chamber of Commerce (Chamber) appreciates the Women’s Bureau conducting
the Request for Information (RFI) to solicit input on how best to address the issue of ensuring
employees have paid leave so that they can attend to various personal matters.

Many of the Chamber’s members operate in multiple states and localities, and many of
these have told us of the difficulties they are having complying with the various, and growing,
state and local based paid leave mandates an d programs. These companies are having trouble
working with the many inconsistent administrative elements that comprise managing a paid leave
benefit. These problems occur with both paid sick leave (PSL) and paid family leave (PFL)
benefit programs. Att ached are two tables showing how the different state and local leave
mandates and programs have very different specific administrative features.

Based on the comments from our members, the Chamber believes that if any permanent
federal paid family leave program is enacted (as distinguished from the leave benefits included in
the Families First Coronavirus Relief Act), the overwhelming priority is to provide employers the
opportunity to opt into a nationally structured pr ogram that relieves them of having to comply
with the patchwork of state and local programs. By making this an option for employers, those
employers who are comfortable with the state or local programs that cover them, such as those
employers who do not operate in multiple jurisdictions, may remain in those programs.

Other key principles the Chamber believes should be reflected in any federal paid family
leave benefit, if one is enacted , are:

 Employee Funded — Several states, such as California, New Jersey, Rhode Island, and
(most likely) Connecticut, fund their PFL programs exclusively through mandatory
employee payroll deductions. The employee payroll deductions are collected by the employer each pay period and ultimately remitted to the administering agency, usually on a quarterly basis. A future federal PFL program should follow this model for multiple reasons.

First, employers will need to absorb significant PFL implementation costs. These costs
include, but are not limited to, policy drafting, setting up payroll deductions, employee
and manager training, integration with existing company policies, employee absenteeism
due to use of the PFL, recordkeeping, and remitting collected premiums to the
administering agency. Thus, employers should not have to cover the costs of the PFL
premium as well. Second, and relatedly, many employers already incur the cost of
maintaining their company -provided PFL and/or short -term disability programs.
Requiring them to also fund some or all of a state PFL program would force them to pay
for the same empl oyee benefit twice. This unreasonable double payment standard could
encourage many such employers to drop their existing company paid leave programs,
which often times are more generous than state PFL programs.

 FMLA Model — Existing state and local PFL prog rams impose a number of standards —
employer coverage, employee eligibility, amount of benefits, qualifying events, covered
family members — that far exceed comparable standards under the federal FMLA. By
broadening their requirements so far beyond those impos ed by the FMLA, employers
subject to state and local PFL laws are left absorbing hefty costs and administrative
burdens in order to comply. To this end, any future federal PFL proposals should largely
(although not entirely) follow the existing FMLA model, including, but not limited to, the
following points:


o Employer Coverage — The Issue: Small businesses face unique compliance
challenges, particularly with regard to operational disruptions, which is why the
FMLA only applies to employers who employ 50 or mor e employees for at least
20 workweeks in the current or preceding year. However, most existing PFL laws
will cover an employer if it has one or more individuals in employment in the
relevant jurisdiction, thereby imposing substantial financial and operatio nal
burdens on small businesses across the PFL jurisdictions.
• Recommendation: Any f uture federal program should set an employer
coverage threshold that is friendly to small businesses. The threshold
should be no less than employing 50 employees for at le ast 20 workweeks
in the current or preceding year, as exists under the FMLA.

o Employee Eligibility — The Issue: Existing PFL laws contain a variety of
employee eligibility criteria, many of which include low annual earnings
thresholds, hours worked requireme nts, and/or length of employment
requirements. These criteria cover many individuals, including new hires,
seasonal employees, and certain part -time employees, who are not currently
eligible for leave under the FMLA. Employers that employ large part -time
populations, depend on influxes of seasonal employees during peak months,
and/or experience high employee turnover, will face extensive and widespread
administrative and financial challenges if employees who currently do not reach
the FMLA eligibility thres hold are entitled to federal or state PFL benefits.

• Recommendation: Any future federal program should impose an
employee eligibility standard that, at a minimum, requires employees to
meet the hours worked, length of employment, and worksite eligibility
standards under the FMLA, namely that the employees (1) have worked
for that employer for at least 12 months, (2) have worked at least 1,250
hours during the 12 months prior to the start of the FMLA leave, and (3)
work at a location where at least 50 emplo yees are employed at the
location or within 75 miles of the location. Further, any future federal PFL
program also should require that an individual satisfy a minimum earnings
threshold based on his or her earnings during the current or prior year in
order to be eligible to receive federal PFL benefits.

o Length of Benefits — The Issue: Four of the existing 10 PFL laws permit
employees to receive PFL benefits during more than 12 weeks in a 12 -month
period (i.e., the federal FMLA threshold), with the maximum an nual amount of
PFL benefits being afforded in Massachusetts (26 weeks of combined family
leave and medical leave) and Washington State (18 weeks of combined family
and medical leave). A number of other PFL laws where the annual weekly
benefit amount is le ss than or equal to the FMLA’s 12 -week standard do not
permit employees to use PFL for their own serious health condition. Instead,
employees often can receive benefits for such absences through a separate state
program (i.e., disability insurance benefits ), which increases the aggregate amount
of time off an employee can take in a year beyond the FMLA threshold.
Excessive amounts of time off impose considerable costs and complications on
employers and employees not on leave.
• Recommendation: A ny future federal PFL program should provide
eligible employees with no more than 12 weeks of benefits in a 12 -month
period.

o Qualifying Events — The Issue: State and local PFL benefits are available for
family and medical issues that far exceed bonding with a new chi ld, as well as
other covered absences under the FMLA.
• Recommendation: Any future federal PFL program should limit
qualifying events to those permitted under the FMLA.

o Covered Family Members — The Issue: Many PFL laws define “family member”
significantly m ore broadly than parent, child, and spouse (i.e., the federal FMLA
standard). Common additional covered individuals include parents -in-law,
siblings, grandparents, and grandchildren. However, and notably, the New Jersey,
Connecticut, and Oregon PFL laws al so provide employees with PFL benefits
when they are absent to care for the serious health condition of an individual
whose close association with the employee is equivalent to a family relationship.
• Recommendation: Any future federal PFL program should largely limit
covered family members to the categories of individuals who are
considered family members under the FMLA — parent, child, and spouse,
although adding grandparents to that list should be considered.

o Job Protection — The Issue: Not all state PFL programs explicitly guarantee that a
worker can return to his or her job.
• Recommendation: A future federal or state PFL program should be
specific about a worker’s right to return to his or her job after taking leave.

The Chamber offers its assistance to the Women’s Bureau for any future efforts in
developing a recommended approach to a federal paid family leave benefit.

Sincerely,

Marc Freedman
Vice President, Workplace Policy
Employment Policy Division