Aside from the more recently passed legislation on the federal, state, and local levels, many HR leaders are still challenged with staying on top of the myriad of existing leave laws
In the past few years, organizations have faced unprecedented challenges, including a sudden shift to remote work, employee burnout, and rampant resignations. Another issue adding to these challenges is a complex maze of employee leave policies. There are currently federal leave laws such as the FMLA, ADA, and USERRA, as well as religious observations under Title VII, and workers' compensation. In addition, there are 396 state-specific and 67 county-specific leave laws, and they are growing and changing constantly.
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The following are key issues and trends that people leaders should be aware of, not only to remain compliant, but also to make employee leave more of a stress-free experience that can help attract and retain talent.
Deborah Hanus is the CEO and co-founder of Sparrow, which makes it easier for employers to care for their people with the industry's leading high tech and high touch, end-to-end leave management solution. Prior to starting Sparrow in 2018, Deborah earned multiple engineering degrees from MIT. She then went on to become a Fulbright Scholar, prior to starting her PhD work at Harvard. Wage replacement benefits
Incorporating wage replacement benefits into job-protected leave programs is a practice that is proliferating. Whether it's paid parental leave legislation on the state level (with Oregon and Colorado being the newest to implement these programs), legislation at the local level (such as in Tacoma, Washington where a law was passed requiring paid sick leave to be used for bereavement purposes), or paid leave due to COVID-19 under the Families First Coronavirus Response Act (FFCRA) on the federal level (which sunsetted at the end of September 2021), there are more and more pay requirements employers must be aware of as they administer their leave policies.
In some cases, employers need to budget for paid leave benefits in scenarios where the state is not funding a program, such as San Francisco's Paid Parental Leave Ordinance (PPLO) which requires employers to supplement the pay for those on leave themselves, or in cases where companies have decided to top-off an employee's leave compensation so that they receive their normal amount in full. Gone are the days of simply leaving it up to the employee to use their accrued PTO for an increasingly expanded list of protected leave reasons.
Increasing Focus on diversity, equity and inclusion (DEI)
The second trend is tied to making leave laws more inclusive so that a wider range of employees are able to benefit. Take the California Family Rights Act (CFRA), for example, which expanded requirements to all employers with at least five employees from what was previously set at 50, effective January 1, 2021.
Ten years ago when people discussed leave management, they primarily thought of maternity leave, which oftentimes was unpaid unless someone was employed in one of the few states offering paid family leave insurance. Today there are many different types of protected leaves that include pay, such as paid leave for same-sex couples and those who adopt or foster a child.
And it's not only parental leave. Paid caregiving leave, for example, is on the rise. These programs have typically focused on working parents, but millions of employees are faced with elder caregiving responsibilities and employers are starting to see the impact. Organizations need to ensure they institute a universal approach to employee leave with policies written in a way that makes everyone feel supported and included.
Still playing catch-up on existing leave policies
Aside from the more recently passed legislation on the federal, state, and local levels, many HR leaders are still challenged with staying on top of the myriad of existing leave laws that are just as complex as the newer policies and programs. This challenge is evident in the numerous FMLA violations and infractions administered by the Department of Labor.
Additionally, there are a slew of other regulations that are less common but still have a direct effect on the workplace and leave management, and the fact that they are less common can make them challenging to stay on top of. For example, the Jury Act is a federal law that companies need to be prepared to adhere to for employees who are summoned for jury duty. We've also seen several instances in recent years where employers are looking for ways to support their employees when they request time off for blood, bone marrow, and/or organ donations. These are just a few of the many situations and scenarios that employers should be prepared to support from an employee leave management standpoint.
Best practices for overcoming the complexities of leave management
Given the increasingly complex nature of what goes on when an employee takes a leave of absence, people leaders must take a thoughtful, holistic, and organized approach to not only ensure compliance, but also support their employees during very important (and often stressful) moments in their lives. Modern companies with an empathic approach to leave management have seen improved rates of employee retention and overall workplace satisfaction by instituting these best practices:
Go beyond the baseline
Recent developments in employee leave legislation have played a major role in putting employee leave benefits into the spotlight, which has motivated many people leaders to go "beyond the norm" in this area as part of their overall effort to recruit and retain workers. Companies that offer more robust leave programs than what's required by law are at an advantage in today's tight labor market when competing for top talent.
Embrace system agility
We learned at the start of the pandemic with the sudden enactment of the FFCRA (that required several systems and workflow processes to be changed in a matter of weeks) that it's imperative for these systems and processes to be flexible and able to quickly adapt and accommodate new workflows. A common stumbling block tends to be around administering paid leave and/or processing new payroll deductions in a manner that adheres to changing wage and hour laws. Employers need to make sure that their payroll and tax reporting systems are not only set up to manage the current complexities and nuances of this process, but that they can be adapted and reconfigured in the future as laws and regulations continue to evolve.
Establish written and inclusive policies
Policies need to be thoroughly outlined to clearly clarify eligibility and qualification for taking leave. Documentation needs to be inclusive so that no one is left out, which in turn, not only minimizes risk of potential for discrimination but also makes your organization a better place to work overall by conveying the message that employee care benefits are available to everyone.
Invest in training
A significant number of non-compliance instances stem from people managers not having adequate knowledge or sufficient training on the current legal rights of employees when it comes to taking a leave of absence. Managers need to be trained regularly to ensure compliance.
Partner with a leave administrator
For organizations with smaller teams, HR leaders often do not have the resources to effectively manage employee leave. In these scenarios, many organizations benefit from working with an external vendor that can provide the technology and subject matter expertise to take over employee leave management in a way that ensures compliance as well as provide an optimal experience for the employee and employer.
HR teams are navigating through unprecedented times. From managing a rapid and widespread shift to remote working, finding and retaining talent in an increasingly competitive labor market, and ensuring compliance with a new array of employee leave laws, there's no shortage of chaos and complexity. In this environment, a core pillar of effective people leadership will be ensuring the employee experience remains front and center. With this in mind, it's paramount that companies stay abreast of current leave policies, and remain ready and vigilant to adapt as new policies are introduced in the future.
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