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Law360 (March 31, 2021, 6:32 PM EDT) --
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| Rachel Steber |
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| George Chuzi |
While these efforts typically have failed because of concerns about cost, the COVID-19 pandemic has hastened a federal reevaluation of the concept.
In 1993, Congress passed the Family and Medical Leave Act for the federal workforce. While federal employees have long been eligible for paid sick leave, and to request unpaid sick leave if they exhaust the paid leave, use of that leave is limited to the employee's own illness or condition.
In essence, the FMLA allows federal employees to request up to 12 weeks of unpaid leave per year to care for a sick family member.
If an employee has sick or annual leave available, it can be substituted for the unpaid leave at the employee's request; however, the FMLA is limited to 12 weeks during a 12 month period. To be eligible for the FMLA, an applicant has to have been a federal employee for 12 months.
On Jan. 15, 2015, President Barack Obama issued a memorandum directing federal agencies and the U.S. Office of Personnel Management:
To ensure that employees experiencing the birth or adoption of a child, foster care placement in their home, or who have other circumstances eligible for sick or annual leave are aware of the full range of benefits to which they are entitled.
The memorandum advocated sick leave, FMLA leave and approved leave without pay for parental leave.
In December 2019, as part of the National Defense Authorization Act, Congress adopted the Federal Employee Paid Leave Act, which amended the FMLA to specifically provide 12 weeks of paid leave to be used following the birth or placement of a child.
This appears to be the first use of paid parental leave on a large scale in the U.S.
As with the FMLA, the FEPLA requires employment for the 12 months preceding the use of the leave, and it can only be used during the 12 months following the birth or placement. Any leave available to the employee can be used in addition to the paid parental leave.
The FEPLA did not become effective until Oct. 1, 2020, and it did not apply to any birth or placement before that date. Moreover, the FEPLA applied only to Title 5 employees — federal employees under the general schedule pay scale — and Transportation Security Administration screeners.
In the 2021 NDAA, however, Congress made technical amendments to the FEPLA, expanding paid parental leave to virtually all federal employees. Congress also redefined the requirement for 12 months of service prior to the birth or placement, including service as a temporary or intermittent employee as long as the employee was permanent at the time the FEPLA was invoked.
Employee Benefits and Obligations Under the FEPLA
In addition to the requirement for 12 months of prior service, employees must also agree, in writing, to work for 12 weeks at the agency after the conclusion of the paid leave.
If the leave is used intermittently, work between leave uses does not count toward this obligation. In addition, the commitment to work 12 weeks applies even if the employee used less than the maximum of 12 weeks.
An employee who leaves the agency for any reason prior to completing the 12-week work obligation fails to meet the requirement, though a reassignment within the agency is not considered a separation.
If a benefitting employee fails to meet the 12-week requirement, the agency may require the employee to reimburse the agency for the amount of time used.
A qualifying employee should ask the agency's HR department for a copy of this agreement and ensure that it complies with and does not substantially deviate from the regulations.[1]
A significant exception to the 12-week work obligation excuses a parent who is suffering from a serious health condition, including mental health.
The agency waives the requirement upon submission of medical documentation supporting the employee's claim of a serious health condition that is preventing the employee from returning to work.
How the FEPLA Interacts With the FMLA
It is important for employees to understand how paid parental leave interacts with the FMLA. First, an employee must be eligible for the FMLA in order to be eligible for paid parental leave.
Second, while the FMLA allows up to 12 weeks of unpaid leave for purposes unrelated to the birth, adoption, or placement of a child, the total amount of leave available to an employee for these purposes is 12 weeks.
Thus, an employee who uses six weeks of FMLA leave for nonparental purposes in a 12-month period will only have six weeks of eligibility remaining for paid parental leave.
As noted, paid parental leave can only be used for one year following the birth, adoption, or placement of a child, after which it expires. As the result, federal employees who foresee utilizing paid parental leave should think carefully before making any unpaid FMLA leave requests within the same 12-month period.
Nonfederal Options
While the FEPLA is far from perfect, it leaves in the dust other efforts in the United States.
In the first COVID-19 relief package in the Spring of 2020, Congress required paid leave for employees who suffered from the virus or were caring for sick family members.
While the act also provided 12 weeks of paid leave to people caring for children whose schools were closed because of the virus, the leave provisions covered fewer than 50% of employees, with other loopholes for small businesses.
Still, it was — according to The New York Times — "the first time the United States has had widespread federally mandated paid leave"[2] in the private sector.
Almost immediately, however, the Trump administration's U.S. Department of Labor issued guidance excusing many small businesses from compliance with the paid leave provisions.
The American Rescue Plan, signed in March, expanded the definition of private sector employees eligible for the benefits of the 2020 relief package.
However, while paid sick and family leave was required for covered businesses under the 2020 package, the mandate has been lifted under the ARP, though employers who choose to provide the benefit will receive a tax credit to offset the leave, up to $12,000 per employee.
To put these benefits in perspective, a 2004 Harvard study found that of 168 countries 163 guaranteed paid leave to women in connection with childbirth, and 45 provided paid paternity or parental leave.
Among the states, as of July 2020, 29 states provided no leave at all beyond the federal FMLA. Among the remaining 21 states, many offered only unpaid leave. The District of Columbia allows up to eight weeks of paid parental leave, up to $1000 per week, paid by the D.C. government from tax revenues.
In sum, the U.S., led by the federal government, is joining the rest of the developed world and granting up to 12 weeks of paid leave to federal employees who become parents; if both parents are federal employees, the benefit equates to 24 weeks of paid leave for the family.
This is an enormous change for the approximately 2.1 million federal employees and their children.
Rachel Steber is a law fellow and George Chuzi is a partner at Kalijarvi Chuzi Newman & Fitch PC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See 5 C.F.R. § 630.1705.
[2] https://www.nytimes.com/2020/03/19/upshot/coronavirus-paid-leave-guide.html.
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