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The Family Medical Leave Act Turns 25 Years Old

The Family Medical Leave Act (the “FMLA”) turned 25 this week, on February 5, 2018. Enacted in 1993, the FMLA is actually one of the youngest federal employment laws on the books. As with most other individual protections enshrined in federal law, the FMLA — which generally allows 12 weeks of unpaid, job-protected leave to care for newborns and ill family members or to deal with a worker’s own serious illness — sets a floor, not a ceiling, for workplace leave. Over the past several years, some states and many cities have taken this principle seriously and enacted more stringent requirements for employee leave. Many employers also provide paid, as opposed to unpaid, leave in some form or another to their employees, often viewing that benefit as good for business and attractive to potential recruits.

With President Trump’s nod to paid family leave in his state of the union address last week, though, talks of new federal paid-leave provisions have kicked off just in time to celebrate the FMLA’s quarter-century. Taking up the call for federally mandated paid leave, Marco Rubio and Ivanka Trump — a vocal advocate of paid family leave — endorsed the idea. While it is unclear what form such leave would take and whether it would have the votes to pass both houses and get the President’s approval, Mr. Rubio’s preferred approach appears to be to allow individuals to draw on Social Security benefits and delay those payments after retirement. Far from the current structure of the FMLA or local and state paid-leave obligations, this approach is attractive to Republicans — and potentially to employers — as a way to allow paid leave without additional cost to employers.

Of course, companies are well aware of the other costs beyond simple payments for time off that accompany leaves of absence. For example, the cost of hiring temporary employees to fill the shoes of employees on leave, and the cost of the temporary loss of those employees’ experience and training, come to mind. This new proposal would also likely incentivize more people to actually take the leave to which they are already entitled, increasing the occurrence of these costs. But for companies that already provide paid leave, Mr. Rubio’s proposal may be more welcome than requiring employers to foot the bill, because such companies can continue to offer that extra benefit as a recruiting or retention tool rather than as a requirement to comply with the law.

These discussions are in their infancy, but it’s never too early to consider how the proposals being discussed may affect your business.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.