Correctly administering Paid Family and Medical Leave (PFML) has only become more complex following numerous state-level changes during the COVID-19 pandemic. The USA is one of the few industrialized nations without paid family and/or medical leave at the national level. Thus, states have led the way. Since 2020, D.C., Massachusetts, Washington, Connecticut, Oregon, New Hampshire, Colorado, Maryland, and Delaware have all passed or enacted new paid leave laws. PFML legislative initiatives are under consideration in other US states.
All of these changes have made PFML one of the most popular and challenging topics that we cover in our Absence Management Academy webinar series. In today’s post, we’ve shared the top questions asked by employers at our PFML webinar, along with answers from our Compliance Team.
What are the key differences between PFML and Disability Insurance (DI)? What types of leave/conditions would be covered under a DI leave, versus a PFML leave?
A DI program is specific to the employee’s own disability or health condition, including pregnancy. A PFML program, however, combines both an employee’s own heath condition and the ability to take leave to care for a family member or bond with a new child.
When an employer is in one state, and the employee is in another state, which state’s laws does the employer have to follow regarding whether or not (and how much) PFML the employee is entitled to? How are remote workers handled if where the work is performed is a factor?
This is a complex situation and really depends on the states in question. Some states, like California and New York, may not have a residency requirement. An employee could become eligible for PFML benefits for performing work in the state, but not need to reside in the state. As for remote workers, states have attempted to address this issue by providing guidance around the “localization of employment.” They look to where the work is performed (in or out of state) and, if out of state, whether it is incidental to the employee’s service within the state. For example, states consider whether the work is temporary or transitory in nature, if the work consists of isolated transactions, where the base of operations is located for the employee, and even the state from which services are directed or controlled. Localization is a complicated topic and, in general, states rely on employers to review laws related to localization and make a good faith determination on which state to report employee hours and wages.
If an employee is going to give birth, is that considered both PFL (Paid Family Leave) and PML (Paid Medical Leave)?
Potentially. The pregnancy-related leave would be under the medical portion (PML) and the bonding would be under the family portion (PFL) of the program. Some states don’t have a combined PFML program, like Rhode Island or New Jersey. In those states, there are separate programs for disability leave and family leave (e.g., Rhode Island Temporary Disability Insurance and Temporary Caregiver Insurance), but they are usually run by the same agency. There may also be a combined cap on the amount of time available for the employee to be out on leave.
Can an employee be on FMLA and PFML at the same time? Can PFML be taken in conjunction with workers’ comp?
If an employee is out on leave for a reason that qualifies for both PFML and federal unpaid FMLA, like their own serious health condition, then yes, FMLA and PFML will run concurrently. With respect to Workers’ Compensation running concurrently, it depends on the state PFML program. Most programs state that if an individual is receiving other forms of income or wages, the PFML benefits will either be offset or the employee will not receive PFML benefits.
I have lots of folks who live in New Jersey and Connecticut who work in my New York City office, making them eligible for PFL laws in their home state and where they work in NYC. How do benefits integrate between multiple states? For multi-state employers, how should company leave policies be set up to account for PFML across multiple states?
As discussed above in Question 2, this is a very complex situation. Many state PFML programs require individuals to report additional sources of income and may offset the benefit accordingly. Multi-state employers should work closely with their employment counsel to draft company paid leave policies that articulate under what circumstances an individual may receive paid leave benefits. It would be a good idea to include a provision that notifies employees if the company leave will run concurrently with any state-level PFML program and the pay from the company will be supplemental to or “top off” those benefits received from the state(s).
So many of the details of PFML are governed by state law – is there a single resource where employers can find answers to PFML questions for ALL states in a single place?
The best source to find answers and details specific to your state is to look at the state PFML website. You can use your favorite search engine and put in your state name, plus PFML (e.g., “Massachusetts PFML”). However, to find all states in one location with high-level information, you can visit the Bipartisan Policy Center’s State Paid Family leave Laws Across the U.S. webpage. It’s periodically updated and includes an easy-to-download reference table.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.