What HR should know about US efforts to pass paid family leave

The Family and Medical Leave Act (FMLA) was hailed as groundbreaking when it was first enacted in 1993, but the US’s signature leave policy is showing its age—as was evident from a birthday party thrown in its honor earlier this year.

The US is one of just six countries in the world with no national paid leave program. And while the FMLA provides US employees up to 12 weeks of unpaid leave to bond with a newborn child, care for an immediate family member, or deal with a serious health condition, lawmakers have been working to pass something more robust for over a decade now—albeit unsuccessfully.

Once more with feeling. At the end of 2023, a bipartisan group of lawmakers announced a renewed legislative effort to get something on the table. Lawmakers in the Senate and House released a letter on Dec. 13 seeking input from stakeholders and the public on expanding access to “paid parental, caregiving, and personal medical leave.” In an interview with the Washington Post, New York Sen. Kirsten Gillibrand, a Democrat leading the Senate group, said the goal of the push was to get “real paid leave started for a certain number of Americans who would never have access.”

This is a rare legislative effort on paid family leave from lawmakers on both sides of the aisle. The bipartisan House group has been looking at the issue for a year now, and has said it intends to release a legislative framework for paid family leave in the coming months.

The current landscape. In the absence of a paid leave program at the federal level, more than a dozen states and Washington, DC have passed their own laws in recent years requiring employers to provide some form of paid family and medical leave.

Navigating compliance with state laws and the FMLA can be an administrative headache for HR departments, Ashley Brightwell, a partner in the labor and employment practice of Atlanta-based law firm Alston + Bird, told HR Brew. State laws differ in terms of the rate of pay, length of leave, and how benefits are administered. Employers may have to figure out how their own paid leave benefits intersect with these laws, as well.

Overseeing leave for increasingly distributed workforces adds an extra layer of complexity, Brightwell said. “It’s a big learning curve,” she said of managing paid leave for remote workers in different jurisdictions. “I think it’s been a real challenge that has come of Covid-19 and remote work."

Ideally, a broader federal paid leave policy might ease the administrative burden on states and employers when it comes to paid leave, Brightwell said: “It’s certainly my hope, if and when we ever do get a federal paid leave law, that a lot of that uncertainty, and figuring out where you’ve got employees, and what specific laws apply, will be lessened to a significant degree.”

How paid leave legislation could affect employers. It’s hard to say exactly how federal paid leave legislation might affect HR, given no firm proposal has been released yet, Brightwell added. A lot of the effects will hinge on how the program is funded, she said—ie, through tax incentives, or having employees pay into the system.

Last spring, Senate Democrats reintroduced a paid family leave bill that would have been funded by “a payroll tax split evenly between employers and employees,” according to the Center for American Progress. The bill, which hasn’t yet come to the floor for a vote, would offer workers up to 12 weeks of paid family leave, though employers and states would still be able to offer more generous benefits if they wish to do so.

Any federal paid leave policy would impact businesses of all sizes, “because you’re going to have to make sure that even if you do have some paid benefits, you know that it is compliant with what the federal law mandates,” Brightwell said. The listening sessions and meetings currently taking place in Washington, she added, are “intended to try to figure out how to best help…with the least burdensome impact” on firms.