Navigating the Patchwork of Paid Family Leave Laws: An HR Challenge Met


HR professionals are on the front lines of the need for, and implementing requirements around, paid family leave. Given the uncertainty at the federal level in the policy area of paid family leave (PFL), with a recent proposal being floated that would open up workers’ social security benefits for them to “borrow” against their own federal retirement benefits to fund their current PFL time, it’s no wonder that states are stepping in to fill what they see as a gap in employees’ very real and unmet needs in this area. The results are creating significant business, compliance and human resources challenges in implementing a patchwork of legal requirements across the United States.

New York’s state paid family leave requirements became effective on January 1, 2018. A very thorough state-specific overview was recently posted by Megan Holstein on the Jackson Lewis blog here, so please be sure to check that out if you are looking for particular New York PFL guidance. More generally, however, it’s important to consider how operationalizing legal requirements for paid family leave is not as simple as it seems. These are some of the challenging issues that must be resolved by HR:

·       Alignment of current paid leave programs such as PTO, short-term disability benefits, FMLA, and sick leave with the state and local requirements

·       Updating technological systems such as payroll programs and solutions for those in affected states so that accruals, usage and notifications are compliant with the law

·       Changing processes, documentation and protocols for leave requests so that legal requirements are fulfilled

·       Training HR, management and others on new processes and requirements

·       Ensuring that sufficient staff capacity is available to handle state-based processing requirements

·       Recognizing the complex situations that arise where state, local and federal law, as well as collective bargaining agreements and other requirements create the potential for complying with one set up requirements but violating another, and coming up with ways to avert this risk

·       Building the internal expertise and relationships across siloed departments to effectively handle novel issues that may arise, in a way that treats employees like human beings and not problems

Other states where paid family leave is already in effect include California, New Jersey and Rhode Island. Washington state passed PFL in 2007 but it has never been implemented. Washington, DC has a new PFL provision that will roll out in 2020. Continued proposals are being brought forward, including the Colorado FAMLI Act, which would apply to every employer with employees working in the state, including very small businesses without HR support to handle the challenges above.

One solution that has been advanced is also called Workflex in the 21st Century Act, also called the #workflexbill. The act, recommended by the Society for Human Resource Management (SHRM) to the patchwork of complex requirements continues to impact multi-state employers, amends the Employee Retirement Income Security Act (ERISA) to allow employers to opt out of state and local requirements as long as they provide paid leave to all full- and part-time employees with at least 90 days’ tenure. The leave would be provided at the cost of the employer, not the taxpayers or employees. Part-time workers would receive paid leave proportional to the hours worked for their employer.

For HR professionals who are helping employers implement paid leave benefits and operationalize regulatory requirements, being aware of the legal landscape and solving the operational challenges are both critical. Whether benefits are required by law or not, it is up to HR to ensure that employers are meeting the needs of their employees. In addition, smart HR professionals work to align leave with other compensation and benefits options to support the strategic plans of their organizations and capture the benefit to their employer brands that comes with nurturing employees’ needs for paid family leave.  

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