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This week, President Trump and former Vice President Joe Biden will meet for the first of several presidential debates leading up to the November 3 general election.  Several of my blogging colleagues and I have identified THE debate question we would ask each of the candidates if we had had the chance.

Channeling my inner Chris Wallace, these are the leave-related questions I would pose:

To Vice President Biden

With the exception of the Families First Coronavirus Response Act (FFCRA), there is no federal law requiring private-sector employers to provide paid family and/or medical leave to their employees. Numerous states and localities, however, have adopted leave laws requiring specified employers to provide paid leave to employees for a range of reasons, under a variety of circumstances, and subject to differing eligibility criteria.  A ton more states and cities have introduced similar laws.  As a result, employers are mired in a morass of varying statutory and regulatory obligations, crippling their ability to effectively run their businesses.  Will you commit to supporting a federal paid leave law that balances the rights and needs of both employers and employees, and will you commit that this federal law will preempt all state and local paid leave laws so there is one law and one standard that employers must follow?

Jeff’s editorial comment: Earlier this month, Littlers Workplace Policy Institute (WPI), led by my colleagues Mike Lotito and Jim Paretti, provided comments to the Department of Labor Women’s Bureau’s request for information on the impact of paid leave on employers.  In WPI’s submission, we pointed out the following:

It is our experience – informed by that of our clients – that it is this multi-state/locality “patchwork” of requirements that are imposing the most significant burden relating to paid leave on larger employers operating in multiple jurisdictions.  Our larger, multi-jurisdictional clients report having to devote significant administrative personnel and resources, at significant cost, to ensuring compliance with various state and local law leave mandates.  This, of necessity, means fewer resources which can actually be devoted to accomplishing the over-arching goal of providing paid leave to employees.  And even in those states where an employer may seek permission to use its own privately-run program (rather than provide leave by way of a state-run mechanism), the variance from state to state in requirements for such approval often prevents a multi-state employer from operating a standardized, national leave benefit program for all of its employees.

 

The importance of the ability of an employer to maintain and administer a single national benefits scheme – to the benefit of both employers and employees – cannot be understated.  Foremost, this ability allows an employer to provide and administer paid leave benefits to its employees at a predictable and manageable level of cost and resources.  This predictability is increasingly challenged as more states and localities contemplate additional benefit mandates, threatening the ability of employers to maintain existing benefit plans within the confines of their limited resources.  At the same time, a uniform scheme of paid leave benefits ensures that employees are granted certainty as to what they are entitled to under their employer’s plan, irrespective of their state of residence, the location of their specific worksite, the ability to work remotely, or their mobility across various enterprise sites of the employer.

To President Trump

Four years ago, you became the first Republican presidential nominee to propose paid maternity leave for employees across the country. Under your proposal, you would have provided six weeks of paid maternity leave to new moms paid for by funds recovered in fighting unemployment compensation fraud.  Why were you unable to generate support of your party in passing such basic parental leave legislation, and what steps will you take to do so in a way that assists American workers but does no harm to American employers?

Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.

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