Family and Medicaid Leave Act: The Benchmark for State Family Leave Policies
The FMLA is a federal law that allows eligible employees of covered employers to take unpaid, job-protected leave for family and medical reasons. Covered employers are required to offer up to twelve weeks of unpaid leave to care for a new child or a seriously ill family member. However, only 56% of employees are eligible for FMLA. These benefits are guaranteed only for employees who:
- have worked at least 1,250 hours in the last year,
- have been employed for at least 12 months, and
- work for a business with at least 50 employees.
Additionally, leave is required only to care for a spouse, parent, or child; it does NOT apply to extended family members or families of choice.
States have taken the lead to expand FMLA requirements to support family caregivers in numerous ways:
- Covering workers in businesses with fewer than 50 employees (4 states and DC);
- Expanding the definition of “family member” to include extended family, in-laws, stepfamily, and family of choice (8 states and DC);
- Decreasing the time an employee must work before becoming eligible (5 states and DC);
- Increasing the length of leave allowed beyond 12-weeks (2 states and DC);
- Making caregiving a valid use of earned sick leave (19 states and DC)
- Allowing employees to earn paid sick leave (13 states and DC)
- Including provisions for paid leave (8 states and DC).
State Examples of Family Leave Expansions
- Implement paid family leave program (New Jersey and Washington)
- Mandate paid sick leave (Arizona and Nevada)
- Mandate allowing the flexible use of sick leave (Illinois and New Mexico)
- Expand FMLA coverage and benefits (Hawaii)
New Jersey and Washington: Paid Family Leave
Paid family leave laws in eight states and DC allow caregivers to take time off to care for a family member while receiving a portion of their salary. States with paid family leave laws determine the amount of the benefit, length of leave, and financing, with benefits typically worth 50-90% of an individual’s salary and financed by payroll taxes. States laws can also include job protections for caregivers returning to work.
- Employee-funded paid leave: In 2009, New Jersey created a paid family leave program for workers, building off the state’s Temporary Disability Insurance New Jersey’s paid family leave program, called Family Leave Insurance, provides New Jersey workers with cash benefits to care for a loved one with a physical or mental health condition, as well as to care for a new child or handle certain matters related to domestic or sexual violence. In July of 2020, New Jersey expanded the program to cover additional family members, including parents, a spouse, children, domestic partners, grandparents, grandchildren, or any blood relative or other individual whose close association with the employee is the equivalent of a family relationship. Additionally, the program expanded from a maximum of 6 weeks of wage reimbursement to 12 weeks and increased the percentage of average weekly wage used from 66% to 85%. Like most states with paid family leave, the program is funded by a payroll tax on employees. Initially, the program was financed by a 0.08% tax on an individual’s first $34,000 in earnings. In 2019, New Jersey expanded benefits to their current levels, funding the expansion with a 0.09% tax on the first $131,000 in earnings. This tax covers the cost of benefits and program administration.
- Employee and employer-funded paid leave: In 2020, Washington began a paid leave program, which pays individuals between 50% and 90% of their salaries while caring for a close family member with a serious health condition. Workers are entitled to up to 12 weeks of paid family leave. The program is unique in that it is funded jointly by employees and employers for companies with over 50 employees, or exclusively by employees via a payroll tax for smaller employers. Washington’s paid leave program includes job protection for caregivers on leave, protecting the long-term financial security of caregivers who take time off. Legislation creating the paid leave program was passed in 2017 with support from the Republican-led Senate, Democratic-led House, and the state’s business community.
New Jersey’s Paid Family Leave
In New Jersey, effective marketing has been crucial to reaching eligible caregivers. The state launched its paid leave program in 2009 with minimal public messaging and very low utilization rates. When the program expanded in 2019, additional money was allocated for outreach and awareness. The state launched a comprehensive PFL website providing information and guidance, and the program has reached thousands of individuals through employer and employee webinars, presentations, and outreach events. New Jersey has since seen an increase in claims. The take-up rate for the paid leave program is roughly 12-14%, an estimate that comes from advocacy groups, as the state’s plan to access and analyze this data was suspended due to the COVID-19 pandemic. Labor unions, who view the program as both pro-employer and pro-worker, assisted in supporting recent expansions to the program.
Arizona and Nevada: Paid Sick Leave
Paid leave laws in 13 states and DC require employers to allow employees to earn paid sick leave, which supports caregivers who cannot afford paid time off.
- Varying employer sick leave requirements based on employer size: Arizona implemented paid sick leave alongside a minimum wage increase through a ballot referendum. In 2016, 58% of voters approved Proposition 206, the Fair Wages and Healthy Families Act. The Act initially raised the minimum wage to $12 per hour by 2020, and included annual adjustments starting in 2021. The Act also guarantees 40 hours per year of earned sick time for employees, who can earn one hour of sick time per 30 hours worked. Employers with under 15 employees only need to guarantee 24 hours of paid sick leave per year. Under this provision, employees may use sick time for their own care or for the care of a family member, which includes children, parents, legal guardians, spouses, domestic partners, grandparent, grandchild, sibling, and “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.
- Time off for any reason: In 2020, Nevada became the first state to implement a paid leave program that certain employees can use for any reason without providing a reason to their employer for such use. Nevada requires employers with at least 50 employees to allow workers to accrue paid leave at a rate of roughly one hour per 52 hours worked. An employer may limit leave to 40 hours in a given year. In both Nevada and Arizona’s cases, employers bear the costs of any leave used.
Nevada’s “Time Off for Any Reason” Law
After a failed sick leave bill in 2015, Nevada legislators worked to create a bill allowing time off for any reason. The bill earned stakeholder support by exempting certain employers, such as small businesses and businesses within their first two years of operation. The Department of Business and Industry, Office of the Labor Commissioner (OLC) is responsible for enforcement and conducted educational outreach to employers after the passage of the bill. Nevada’s law is unique in that it is financed by employers via paid time off at the employee’s full hourly rate; state funds support only the OLC’s administrative costs.
Illinois and New Mexico: Flexible Sick Leave
Flexible sick leave allows caregivers to use earned sick leave for their own illness or to care for a sick family member or loved one. States may require paid guaranteed sick leave and flexible sick leave, or add flexible sick leave requirements to existing sick leave policies. 19 states and DC require employers to allow employees to use earned sick leave for family responsibilities. In some cases, flexible sick leave and paid sick leave go hand in hand, with both guaranteed in the same law.
- Enhanced flexibility without a specific mandate: Illinois has implemented a law that guarantees flexible sick leave without creating a particular mandate for employers to provide sick leave. The Eligible Leave for Employee Caregiving Time (ELECT) Law of 2017 allows employees to use any sick time they have accrued at their job to care for a family member. The law does not create a guarantee of sick leave, but rather mandates that any earned sick time, paid or unpaid, be eligible for caregiving responsibilities. Employees may use their accrued sick time to care for a child, spouse, sibling, parent, parent-in-law, grandchild, grandparent, or stepparent. This law applies to all Illinois employers with any number of employees. The Illinois law was designed to improve the flexibility of existing leave without imposing new costs on employers or the state.
- Mandatory flexible sick leave: New Mexico has implemented one of the most expansive flexible sick leave policies in the country. Under the Healthy Workplaces Act of 2021, employees will be able to earn up to 64 hours of paid flexible sick time over a 12-month period, starting 2022. Employees can earn one hour of sick time for every 30 hours worked. New Mexico requires employees of any size employer to be allowed to use earned sick leave to care for a loved one of any relation to the employee, biological or other.
Hawaii: Expanding FMLA Coverage and Benefits
- Expanded Unpaid FMLA: The Hawaii Family Leave Law (HFLL) creates an unpaid leave program whose eligibility requirements differ from the federal program. HFFL requires employers with 100+ employees in the state to grant 4 weeks of leave, with state and federal leaves running concurrently if an individual qualifies for both. Leave can be granted for birth or adoption, or to care for a child, spouse, partner, sibling, parent, parent-in-law, stepparent, grandparent, or grandparent-in-law with a serious health condition, a more expansive list of family members than the federal FMLA. Hawaii does not place a minimum number of hours of service to be eligible for state leave, only requiring six consecutive months of service. Additionally, Hawaii does not require 30 days notice before leave, rather requiring notice “in a matter that is reasonable and practicable.” Hawaii’s law defines serious health condition as a condition that warrants the involvement of the employee in providing care and involves inpatient care or continuing treatment or supervision by a health care professional.