On January 10, 2019, newly elected California Governor Gavin Newsom proposed funding six months of partial-paid leave for new parents. The plan, which was announced as part of the governor’s budget, would compensate new parents or caretakers up to 70 percent of their wages to care and bond with a newborn or adopted baby. Newsom stated that “public health and economic research shows that providing up to six months of paid parental leave leads to positive health and educational outcomes for children, greater economic security for parents, and less strain on finding and affording infant child care.”

Currently, each parent may qualify for up to six weeks of paid family leave benefits, and a birth mother may qualify for State Disability Insurance pay for any additional time she is unable to work due to pregnancy or childbirth (often six to eight weeks to recover from childbirth), thus granting some parents access to a combined average of four months of leave at partial pay. However, adoptive and single parents may not have the same access to paid leave benefits. Newsom’s proposal would permit two caretakers to split six months of paid leave.

The administration will convene a task force to consider different options to phase in and expand the current Paid Family Leave program. Currently, workers in the state pay a 1 percent payroll tax on wages of up to $115,000 to fund the program, which is running a surplus. Newsom mentioned that one way to pay for an expansion would be to utilize the surplus or raise the payroll tax or income limit so that those earning more than the current taxable ceiling would pay more.

If passed, Newsom’s proposal would set a precedent in the United States, which is the only developed country in the world that does not guarantee paid time off for new mothers. Since there is no national paid family leave, some states have enacted their own legislation to provide paid leave. For example, New Jersey, New York, and Rhode Island offer paid parental and caregiving leave, and Washington, Massachusetts, and the District of Columbia have paid leave policies that are set to start paying out within the next couple of years. It is clear that there is a momentum to enact family-friendly legislation.

The brand-new Massachusetts Department of Family and Medical Leave (“DFML”) has launched its webpage and issued the first set of guidance for both employers and employees. The DFML was created to help facilitate the implementation of Massachusetts’ new Paid Family and Medical Leave programs (“PFML”). The deadline for employers to start making contributions toward the PFML programs is July 1, 2019, and employees may begin receiving benefits beginning on January 1, 2021.

The DFML’s first set of guidance provides comprehensive FAQ documents, one for employers and one for employees. The employers’ FAQs largely summarize key components of the new statute:

  • Businesses with one or more employee are subject to the new PFML law, but businesses with less than 25 employees or covered individuals do not have to pay the employer portion of the contributions;
  • Those employers with programs that go above and beyond these new minimums may apply for annual exemptions from the new programs;
  • While self-employed individuals are not subject to the new PFML law, independent contractors who contract with companies that issue 1099s to more than 50% of their workforce will be covered by the new law;
  • The contribution rate is 0.63% on the first $128,400 of a covered individual’s earnings, and employers must remit the full contribution (both the employer and employee contributions) to the DFML;
  • Employers may deduct up to 40% of a covered individual’s total medical leave contribution from their pay, and may deduct up to 100% of a covered individual’s total family leave contributions from their pay; and
  • The statutory deadline for the publication of the PFML regulations by the DFML is March 31, 2019, with early drafts to be disseminated before then.

For employees, the first set of FAQs generally address questions about eligibility. This guidance is also relevant to employers, who should take note of the requirements in order to ensure compliance with the new law:

  • Employees and covered individuals must have approximately 15 weeks or more of earnings in a year before they may apply for these new benefits;
  • Individuals may take PFML for:
    • Their own serious medical condition
    • Bonding with a child in the 12 months following birth or adoption
    • Dealing with a qualifying exigency arising out of a family member’s active duty, or notice of impending call or order to active duty
    • Caring for a family member who is a covered service member with a serious injury or illness that is the result of, or aggravated by their service
  • The employee or covered individual’s weekly benefit is calculated as a percentage of their earnings, up to $850 per week;
  • Paid medical leave is capped at 20 weeks per year; paid family leave is capped at 12 weeks per year; paid family leave arising from a covered service member’s call to active duty is capped at 26 weeks per year; and the maximum amount of combined family and medical leave that one person may take is capped at 26 weeks per year.

The DFML is expected to publish more content, including the regulations, during 2019.

 

Anastasia A. Regne, a Law Clerk – Admission Pending – in the firm’s New York office, contributed significantly to the preparation of this blog post.

By Brian W. Steinbach

Since 2008, the District of Columbia’s Accrued Sick and Safe Leave Act (“ASSLA”) has required D.C. employers to provide employees with paid leave (i) to care for themselves or their family members, and (ii) for work absences associated with domestic violence or abuse. Specifically, ASSLA provides covered workers with the ability to earn and take from up to three to up to seven days of covered paid leave each year, depending on the size of the employer.

On January 2, 2014, Mayor Vincent C. Gray signed the Earned Sick and Safe Leave Amendment Act of 2013 (“Amendment”), which significantly amends ASSLA. Among other things, the Amendment eliminates the prior exclusion of tipped restaurant wait staff and bartenders and adds a new provision requiring that restaurant and bar employees, for whom the tip credit is claimed, be provided with at least one hour of covered paid leave for every 43 hours worked, up to a maximum of five days per calendar year, regardless of the size of the employer. (This is the same level as is currently required for employers with 25-99 employees.) However, these employees need only be paid the regular District minimum wage while on leave, without taking into consideration the amount of tips that they may have received if working.

For a more detailed description of the Amendment, please review our recent client alert