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The 2016 Election’s Implications for Paid Family Leave

Currently, there is no U.S. federal statute requiring employers to provide their employees paid family or medical leave. This year, with less than two weeks until the 2016 election, both candidates have set forth plans for paid family leave for the first time in a U.S. presidential election. Paid family leave is an issue which affects millions of voters, but has received comparatively little attention in the media and, until now, hasn’t been supported by a Republican presidential candidate.

The Family and Medical Leave Act of 1993 (FMLA) is a federal statute which entitles eligible employees to take 12 weeks of unpaid, job-protected leave within a 12-month period due to the employee’s own serious health condition, to care for a family member with a serious health condition, or to care for a new child. According to the Department of Labor, the FMLA is “designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons.”

However, the FMLA comes with conditions. In order to be eligible for FMLA leave, an employee must work for a private-sector employer with 50 or more employees, a public agency, or a public or private elementary or secondary school, meaning that many employees of small businesses aren’t covered by the FMLA. In addition, even employees of covered employers are only eligible for FMLA leave if they have worked for the employer for at least 12 months—including at least 1,250 hours during the 12-month period immediately before the leave. Complicating the situation yet further, many employees, especially low-wage workers, can’t always afford to take unpaid leave. And even those employees who do take FMLA leave often report difficulties making ends meet during their time away from work.

Ultimately, about 40% of the U.S. population isn’t covered by the FMLA, and of those who are covered, many aren’t able to fully exercise their FMLA rights due to the financial burden of taking unpaid leave. As a result, many voters have pushed for paid leave plans which go beyond what’s offered by the FMLA. While Trump and Clinton have both proposed plans for paid family leave, the two candidates’ plans differ significantly in a number of ways, the most important being the extent of their coverage and the source of their funding.

Trump’s proposed paid leave plan has a very limited scope. It would apply only to new mothers, to whom it would offer six weeks of paid maternity leave if the mother’s employer does not already offer maternity leave. The program would be funded, according to Trump’s fact sheet on child care, “by amending the existing unemployment insurance (UI) that companies are required to carry” and “would be paid for by offsetting reductions in the program so that taxes are not raised”; Trump has said the program would be “completely self-financing.” According to the same fact sheet, the amount paid to workers on leave “would only equal what would be paid to a laid-off employee, which is much less than a workers’ regular paycheck” in order to incentivize employers not to “eliminate existing maternity care benefits to instead take advantage of the UI system.”

Clinton’s plan, in contrast, has a much broader scope. Her proposed plan is essentially modelled off of the FMLA: Like the FMLA, it would ensure 12 weeks of leave and would cover anyone with a new child, as well as any employee taking leave to care for a family member with a serious medical condition. The plan would expand on the FMLA’s existing structure, however, to include “12 weeks of paid family and medical leave to care for a new child or a seriously ill family member” and to ensure that employees receive “at least two-thirds of their current wages, up to a ceiling, while on leave.” Clinton states that her plan would be entirely funded by tax increases on the wealthy.

If your employer has violated your rights under the FMLA, contact The Harman Firm, LLP.

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