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Legal Matters: Family leave advocates planted the seed |
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Written On: July/August 2007 |
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Written By: by Kris Tefft, AWB General Counsel |
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By any estimate, one of the most significant pieces of legislation coming out of the 2007 session was Engrossed Second Substitute Senate Bill 5659, which enacted a paid family leave program in Washington. The bill makes Washington only the second state in the country, behind California, with a state-run paid leave entitlement.
More than any other new law, employers can expect this new program to impose costs and administrative burdens as soon as it comes on line.
A national movement
For at least two decades, there has been a national movement, backed by labor unions and their affiliated research groups, to enact European-style paid family leave in the United States. It requires a mandatory minimum amount of paid time off work to care for one’s own illness or that of a family member. This was addressed, to some extent, in the landmark passage of the 1993 federal Family and Medical Leave Act, which requires employers of 50 or more to provide 12 weeks of job-protected leave to employees for their own or their family members’ serious health conditions. The grand compromise of FMLA, however, was its specific provision for unpaid leave.
The movement scored again in 2002 when California became the first to pass a paid family leave program, adding paid leave as a benefit under the state’s publicly operated short-term disability insurance program. California’s program is financed by employee-paid premiums, averaging about $40 per year, for an average wage replacement benefit of $445 a week for up to six weeks. Debates are under way in New York and New Jersey to establish similar programs. California is currently debating expansions to its own program.
Proposals surfaced in Washington starting in 2001 to establish a similar program here. In 2007, advocates capitalized on a political realignment of the Legislature to pass E2SSB 5659 over the vigorous opposition of the employer community. Still, it came out with many politically necessary omissions, many unanswered questions, and many traps for the unwary.
Major features of the program
Starting Oct. 1, 2009, all employees in Washington are entitled to five weeks of leave from work, with wage replacement of $250 per week after a one-week waiting period for full-time workers. The leave is job-protected if the employer has 25 or more employees and the individual on leave worked a certain minimum number of hours that year.
As introduced, the bill would cover any number of scenarios. As enacted, the program applies only to leave for birth of a child or placement of an adopted child. Advocates for the bill were forced to make this concession to garner enough support to pass the bill.
The most perplexing part of the program is that its funding and administration are yet to be determined. Unable to agree on how to pay for the program and what state agency should run it, legislators left those critical questions up to a task force made up of legislators and business-labor stakeholders. That task force, just getting underway, is to return a bill to the Legislature by Jan. 1, 2008.
Acorn to oak tree
Two observations are in order. First, it is entirely unclear how this mandated leave program will interplay with five existing leave laws imposed upon employers: the federal Family and Medical Leave Act, the state Family Leave Act, the state Family Care Act, the state Maternity Disability Regulation, and the requirement to reasonably accommodate individuals with disabilities, which may, from time to time, include leave from work.
Although the intent of the Legislature is that these various leave programs run concurrently, there will be circumstances where the definitions, coverages, eligibilities, scopes, and purposes of the different leaves do not match up. At times it will be impossible (or, at least, illegal) to observe concurrency.
Second, no one in the business community should believe this program ends here. Paid family leave is the acorn that, in time, will grow into a mighty oak. Although it covers only maternity and paternity leave right now, we should expect perennial efforts by family leave advocates to expand the purposes for leave. First to family members, perhaps, or one’s own condition. Then to grandmothers and aunts and uncles, as California is currently debating. Then to leave for educational reasons, such as parent-teacher conferences. It is reasonable to forecast this program looking much different in a decade than it presently does.
Employers in Washington are saddled with a novel, complicated employment regulation and social insurance program. Where it will go and how it will grow are still unknown. Stay tuned!
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