by Katie Dodd

The trend to provide paid family and medical leave seen in several states (California, Washington, and New Jersey) now has proponents in Congress. Legislation has been introduced in the House and Senate that would provide employees with paid medical leave to care for themselves or close relatives. The bills contain different eligibility requirements and provide different benefits. The bills both establish an insurance trust fund that is funded by contributions from employers and employees. Employers are reimbursed from the insurance fund for leave benefits paid to employees.

The Senate bill (S. 1681), the Family Leave Insurance Act of 2007, provides that employees who have earned wages with a covered employer (any person employing 15 or more employees) for 12 of the previous 18 months are entitled to 8 paid weeks of leave taken under the Family Medical Leave Act of 1993 (“FMLA”). The Family Leave Insurance Act of 2007 was introduced in the Senate on June 21, 2007 by Sens. Christopher Dodd (D-Conn.) and Ted Stevens (R-Alaska).

The House bill (H.R. 5873), the Family Leave Insurance Act, provides that employees who have earned wages with a covered employer (any person employing 2 or more employees) for a minimum of 6 months are entitled to 12 weeks of paid leave for any of the following reasons: (1) to care for a new child, (2) to care for a child, parent, spouse, domestic partner, grandchild, grandparent, or sibling with a serious health condition (3) to care for their own serious health condition, (4) because of an emergency caused by the military deployment of an employee’s spouse, son, daughter, or parent, and (5) to care for a child, parent, spouse, domestic partner, grandchild, grandparent, sibling, or next of kin of an employee who is a servicemember. The Family Leave Insurance Act was introduced in the House on April 22, 2008 by Reps. Pete Stark (D-Cal.) and is co-sponsored by Reps. George Miller (D-Cal.), Lynn Woolsey (D-Cal.), and Carolyn Maloney (D-N.Y.).

Both bills progressively tier benefits. A low income employee (less than $30,000) will receive benefits nearly equal to their full salary, middle income employees ($30,000-$60,000) will receive benefits equal to 55% of their salary, and high income employees (over $60,000) will receive benefits equal to 40-45% of their salary.

Rep. Miller, sponsor of the House bill, argues that paid leave will benefit employers because of increased recruitment and retention, decreased absenteeism, and improved productivity. However, we anticipate that most employers will not support the House bill because it appears to really be an amendment to the FMLA. Under the FMLA, an employee can take unpaid leave for up to 12 weeks to care for the serious health condition of a spouse, child, or parent. The House bill, however, would allow employees to take leave up to 12 weeks of paid leave to care for a domestic partner, grandchild, grandparent, sibling, or next of kin. The House bill would also allow an employee paid leave to care for a child, parent, spouse, domestic partner, grandchild, grandparent, sibling, or next of kin of an employee who is a servicemember. None of these reasons for leave are in FMLA or in the proposed amendment to the FMLA, discussed here.  Stated another way, the House bill would require employers to provide paid leave to employees when, under the FMLA, the employer is not even required to provide the employee with unpaid leave. Additionally, the House bill would apply to any person employing 2 or more employees, which is another departure from the FMLA. The Senate bill, on the other hand, limits benefits to leave taken under the FMLA and only applies to employers with 15 or more employees. Neither body has taken further action on the bills.