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Federal Paid FMLA May Be Out While States Consider Possibilities

Deborah Tam, CPP  

Deborah Tam, CPP  

The signing of the Family and Medical Leave Act (FMLA)  celebrates its 29th anniversary this February 5. Signed in 1993, the FMLA provides workers of employers with at least 50 employees up to 12 weeks of unpaid leave per year for the birth, adoption, or foster care placement of a child, and time off to tend to their own serious health condition or of those in their family. The FMLA was later amended to include unpaid leave when a family member is called into active military duty. The leave has always been an unpaid one.

Fate of Universal Paid Family and Medical Leave Unclear

The Build Back Better bill (BBB), in its initial incarnation, introduced a provision that sought to establish a Universal Paid Family and Medical Leave (UPFML) program, beginning July 2023, by amending the Social Security Act (42 USC 301 et seq.) to include investments in 12 weeks of paid FMLA benefits for all workers during a benefit period of 12 months. Subsequently, that provision would go through some ups and downs as the fate of BBB remains unclear.   Most recently, it seems the UPFML provisions will be jettisoned from the final bill if the bill sees the light of day. There is also speculation that a scaled-back proposed UPFML may be in the works.  

California, Connecticut, the District of Columbia, Massachusetts, New Jersey, New York, Rhode Island, and Washington have Paid Family and Medical Leave Insurance (PFMLI) programs with employers and/or employees contributing to the fund. Colorado and Oregon will begin collecting assessments for their programs in 2023.  

While the fate of a federal FMLA program remains unknown, state legislators across the nation are proposing PFMLI programs as well as considering employer-provided paid family and medical leave (PFML) requirements. The legislative season has just begun in many states. Here are the latest proposals out there.  

Paid family and medical leave proposals by State

Alabama

While there is no paid family leave legislation being proposed currently, there is a bill that seeks to expand unpaid maternity leave requirements to adoptive parents (L. 2022, S31).  

Arizona

Under proposed legislation, workers who have been employed for at least 12 months are permitted to take up to 12 weeks of paid FMLA leave. The bill does not, however, establish a state-run   PFMLI program. It would create a requirement that employers provide paid FMLA leave (L.2022, H2499).    

Delaware

The Healthy Delaware Families Act would create a statewide FMLA insurance program to provide up to 12 weeks of paid FMLA leave. The bill would provide paid parental leave only for workers of employers with 10 to 24 employees and FMLA leave workers of employer with 25 or more workers. Employers     with less than 10 employees would be exempt. It proposes different contribution rates for medical leave benefits, family caregiving benefits, and parent leave benefits. The collection of contributions would not begin until 2025 under the measure. Up to 50% of the contribution may be collected from the employee (L. 2022, S1).  

Hawaii

Proposed legislation would provide up to eight weeks of PFML during the first year after birth of the individual’s child, adoption of a child by the individual, or placement of a child with the individual through foster care, and eight weeks of paid family leave to care for the individual’s family member with a serious health condition during any benefit year, paid through an employer-based private insurance program currently used to provide for temporary disability benefits (L. 2022, H2407/S336).  

Idaho

The proposed Idaho Paid Family Leave Act seeks to provide PFML to public and private employees of up to two-thirds of an employee’s earnings for 12 months for parental leave, three months for maternity leave, three months for family medical leave or six months in the case of a child, and six months for end-of-life care for a family member. The program would be funded by 2% payroll tax, 1% paid by the employer, 1% paid by the employee (L. 2022, H447).  

Illinois

Proposed legislation (L. 2022, H5029) seeks to establish a PFMLI program. Covered individuals would include employees (including domestic workers), self-employed individuals, and individuals who contract for services with covered business entities. Covered business entities are businesses that contract with one or more individuals and are required to report payments for services on Form 1099-MISC or 1099-K for more than 25% of its Illinois workforce (effectively gig workers). FMLI may be used for parental, maternity, family medical leave (including domestic violence, sexual violence, and stalking), and military leave. Self-employed individuals may elect coverage. The program is funded by a 0.73% premium contribution of wages for all employees and individuals of employers and covered business entities.  

Indiana

Proposed legislation directs the Department of Workforce Development to establish a PFML program. Under the proposal, beginning in 2024, employers are required to participate or provide equivalent benefits under a private plan. The bill would cap employer contributions at 0.7% of an employer’s annual wages with employees paying up to 50% of the cost (L. 2022, H1162).  

Maine

On July 22, 2021, legislation was signed to establish a Commission to develop a PFML program. The Commission was tasked to produce a report by January 15, 2022, with its recommendations. The Commission has sought an extension and a report is not currently available.  

Maryland

The Time to Care Act of 2022 (L. 2022, H8) seeks to establish a PFMLI program in the Department of Labor. Under the proposal, beginning Jan. 1, 2023, certain employees, employers, and self-employed individuals would contribute to the program. Employers and employees would contribute equally up to 0.75% of wages up to and including the Social Security wage base limit. Self-employed individuals would contribute 100% of the premium. Individuals could begin claiming benefits beginning July 1, 2024.  

Missouri

L. 2022, H2222/S729 would establish the Missouri Earned FMLA program that would provide up to six weeks of PFML. Employees would be    required to contribute 0.025% of wages, up to the Social Security wage base limit towards the fund. Another proposed legislation (L.2022, H2337) would establish the Missouri Parental Leave Act providing up to 14 weeks of paid leave parental leave related to birth, adoption, or foster care. The program would be funded with an additional 0.008% surcharge to the employer’s unemployment contribution rate.  

Mississippi

The proposed Mississippi Paid Family Leave Act (L. 2022, S2585)  would require employers with 50 or more employees to provide up to 12 weeks of paid family and medical leave to employees who have been employed for at least 12 months prior to the request for leave.  

Nebraska

L. 2022, L290, a carryover bill from the prior legislative session, seeks to establish a PMFLI program. The program would be funded through private donations, funds transferred from the Nebraska Health Care Cash Fund, and contributions by covered employers at a rate of 1% of gross wages paid. Employers that provide paid FMLA leave as generous as the proposed act could apply for an exemption.    

New Hampshire

L. 2022, H1582 proposes to repeal the paid family and medical leave plan. The state signed a bill that established the Granite State Paid Family Leave plan, an opt-in program that is slated to begin Jan. 1, 2023. The proposed bill would repeal that plan. The bill directs any funds that were remitted for this purpose to be refunded. The bill has been referred to the House Commerce and Consumer Affairs Committee. A similar measure was referred to the House Labor, Industrial and Rehabilitative Services committee.  

New Mexico

Proposed legislation (L. 2022, S1/H3) directs the Department of Workforce Solutions to convene a task force to develop recommendations for the establishment of a paid family and medical trust fund and provide a report by October 1, 2022, to the governor and members of the state legislature.  

Ohio

A bill introduced Nov. 16, 2021 (L. 2021, H491) has been referred to the committee on Families, Aging, and Human Services committee. The bill sought to establish a PFMLI program.  

Tennessee

L. 2021, H1295/S672 introduced back in February 2021 was deferred in the Senate Committee and Labor Committee to 2022 and is scheduled for a hearing on February 2 with the House Banking & Consumer Affairs Subcommittee. The bill seeks to establish a PFMLI program. The program would be funded by employee contributions only.  

Utah

While there is no PFML proposed legislation, a bill has been introduced that makes modifications for paid parental leave for state employees (L. 2022, S100).  

Virginia

Proposed legislation (L. 2022, S1) would establish a PFML program that provides up to 12 weeks of paid leave, beginning Jan. 1, 2025. Premiums would be assessed equally among employers and employees beginning 2024. Self-employed individuals would be permitted to opt into the program. The bill was originally introduced in November 2021 and has been assigned to the Labor and Employment on January 28, 2022. In another proposed measure (L. 2022, S15),     paid family leave insurance would be established as an insurance program issued to employers as benefit program to employees. Paid family leave coverage may be written as an amendment to a group disability income policy, included in a group disability income policy, or written as a separate group policy purchased by an employer. This bill was introduced on December 20, 2021, and was referred to the Committee for Labor and Employment.  

West Virginia

Proposed legislation (L. 2022, H3123) seeks to require employers with two or more workers to provide up to four weeks of paid family and medical leave in addition to 12 weeks of unpaid FMLA leave to an employee who has worked at least 12 consecutive weeks.  

Wyoming

There is no proposed legislation currently that applies to private employers, however, there is proposed legislation (L. 2022, S101) that would provide paid and unpaid family leave for up to 12 weeks for state workers.  

 

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