Request for Information; Paid Leave

CourtLabor Department
Citation85 FR 43264
Record Number2020-14874
Published date16 July 2020
Federal Register, Volume 85 Issue 137 (Thursday, July 16, 2020)
[Federal Register Volume 85, Number 137 (Thursday, July 16, 2020)]
                [Notices]
                [Pages 43264-43267]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-14874]
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                DEPARTMENT OF LABOR
                RIN 1290-ZA03
                Request for Information; Paid Leave
                AGENCY: Women's Bureau, U.S. Department of Labor.
                ACTION: Request for Information.
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                SUMMARY: The Department of Labor (Department) seeks information from
                the public regarding paid leave. For purposes of this Request, paid
                leave refers to paid family and medical leave to care for a family
                members, or for one's own health.
                 The Department is publishing this Request for Information (RFI) to
                gather information concerning the effectiveness of current state- and
                employer-provided paid leave programs, and how access or lack of access
                to paid leave programs impacts America's workers and their families.
                The information provided will help the Department identify promising
                practices related to eligibility requirements, related costs, and
                administrative models of existing paid leave programs.
                DATES: Submit written comments on or before September 14, 2020.
                ADDRESSES: To facilitate the receipt and processing of written comments
                on this RFI, the Department encourages interested persons to submit
                their comments electronically. You may submit comments, identified by
                Regulatory Information Number (RIN) 1290-ZA03, by either of the
                following methods:
                 Electronic Comments: Follow the instructions for submitting
                comments on the Federal eRulemaking Portal http://www.regulations.gov.
                 Mail: Address written submissions to Joan Harrigan-Farrelly, Deputy
                Director, Room S-3002, U.S. Department of Labor, 200 Constitution
                Avenue NW, Washington, DC 20210.
                 Instructions: This RFI is available through the Federal Register
                and the http://www.regulations.gov website. You may also access this
                document via the Women's Bureau (WB) website at http://www.dol.gov/wb/.
                All comment submissions must include the agency name and Regulatory
                Information Number (RIN 1290-ZA03) for this RFI. Response to this RFI
                is voluntary and respondents need not reply to all questions listed
                below. The Department requests that no business proprietary
                information, copyrighted information, individual medical information,
                or personally identifiable information be submitted in response to this
                RFI. Submit only one copy of your comment by only one method (e.g.,
                persons submitting comments electronically are encouraged not to submit
                paper copies). Anyone who submits a comment (including duplicate
                comments) should understand and expect that the comment will become a
                matter of public record and will be posted without change to http://www.regulations.gov, including any personal or medical information
                provided. All comments must be received by 11:59 p.m. on the date
                indicated for consideration in this RFI; comments received after the
                comment period closes will not be considered. Commenters should
                transmit comments early to ensure timely receipt prior to the close of
                the comment period. Electronic submission via http://www.regulations.gov enables prompt receipt of comments submitted as the
                Department continues to experience delays in the receipt of mail in our
                area. For access to the docket to read background documents or
                comments, go to the Federal eRulemaking Portal at http://www.regulations.gov.
                FOR FURTHER INFORMATION CONTACT: Joan Harrigan-Farrelly, Deputy
                Director, Room S-3002, 200 Constitution Avenue NW, Washington, DC
                20210; email: [email protected]; telephone: (202) 693-6710 (this is
                not a toll-free number). TTY/TDD callers may dial toll-free 1 (877)
                889-5627 to obtain information.
                SUPPLEMENTARY INFORMATION:
                I. Background
                 The Department is committed to fostering, promoting, and developing
                the welfare of wage earners, job seekers, and retirees of the United
                States; improving working conditions; advancing opportunities for
                profitable employment; and assuring work-related benefits and rights.
                Within the Department, the Women's Bureau's mission is to formulate
                standards and policies that promote the welfare of wage-earning women,
                improve their working conditions, increase their efficiency, and
                advance their opportunities for profitable employment. As part of its
                commitment to promote the welfare and equality of working women, the
                Department seeks public input regarding paid leave policy.
                 In 2019, a Bureau of Labor Statistics report found that 18 percent
                of U.S. private sector workers had access to paid family leave through
                their employers.\1\ A number of studies have linked paid family leave
                of differing types to increases in a mother's likelihood of being
                employed after childbirth, female labor force participation, and
                women's wage earnings and work hours. For example, a 2011 Census Bureau
                report found that women using paid parental leave were twice as likely
                to return to work within three months, and most returned with similar
                hours and pay.\2\ Whether studies finding benefits from paid family
                leave merely identify correlation or can develop a causal connection
                remains the subject of debate.
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                 \1\ Bureau of Labor Statistics. 2019. National Compensation
                Survey: Employee Benefits in the United States, March 2019. Table
                31, https://www.bls.gov/ncs/ebs/benefits/2019/ownership/private/table31a.pdf.
                 \2\ Lynda Laughlin. 2011. ``Maternity Leave and Employment
                Patterns of First-Time Mothers: 1961-2008.'' U.S. Census Bureau
                Current Population Report P70-128, https://www.census.gov/prod/2011pubs/p70-128.pdf.
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                 Some employers believe that paid leave is a valuable tool to
                recruit and retain talented workers, but the availability of paid leave
                is mainly concentrated among high-skilled and highly-compensated
                industries. A 2017 study by the Boston Consulting Group found that
                employer-provided paid family leave has grown most in private sector
                jobs that recruit highly skilled workers. Employees in the top income
                quartile were three and a half times more likely to have access to paid
                leave than employees in the bottom income quartile.\3\ According to a
                report commissioned by the Department, in 2012 more than half of low-
                income workers did not receive paid leave from their employers. About
                18 percent of individuals in higher-income families received no pay
                during leave compared with 53 percent of low-income workers who
                received no pay during leave.\4\ A 2017 Pew report identified that many
                workers with household incomes under
                [[Page 43265]]
                $30,000 who took leave without full pay for the birth or adoption of a
                child faced financial challenges as a result.\5\
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                 \3\ Trish Stroman et al. 2017. Why Paid Family Leave Is Good
                Business. Boston Consulting Group, http://media-publications.bcg.com/BCG-Why-Paid-Family-Leave-Is-Good-Business-Feb-2017.pdf.
                 \4\ Jacob Alex Klerman, Kelly Daley, and Alyssa Pozniak, 2014.
                Family and Medical Leave in 2012: Technical Report, Abt Associates
                Inc., https://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Technical-Report.pdf.
                 \5\ Juliana Menasce Horowitz et al. 2017. Americans Widely
                Support Paid Family and Medical Leave, but Differ over Specific
                Policies. Pew Research Center, http://www.pewsocialtrends.org/2017/03/23/americans-widely-support-paid-family-and-medical-leave-but-differ-over-specific-policies/.
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                 According to the 2012 Department-commissioned report, 59 percent of
                all workers had access to unpaid leave through the Family and Medical
                Leave Act (FMLA),\6\ which requires covered employers to provide
                eligible employees up to 12 weeks of unpaid, job-protected leave for
                specified family and medical reasons, including the employee's own
                serious health condition; to care for a spouse, son, daughter, or
                parent who has a serious health condition; the birth of a child; the
                placement of a child for adoption or foster care; and to care for a
                newborn or newly-placed child.\7\ (The FMLA also provides certain
                military family leave entitlements, i.e., an employee may take FMLA
                leave for specified reasons related to certain military deployments,
                and up to 26 weeks of FMLA leave in a single 12-month period to care
                for a covered servicemember with a serious injury or illness.)
                Requirements for employee eligibility for unpaid FMLA leave include
                firm size (50 employees within 75 miles of the employee's worksite),
                employee tenure (12 months with the firm), and employee hours of
                service (1,250 in the past year).\8\ According to a survey, nearly half
                of all workers eligible for FMLA leave who chose not to take it cited
                lack of pay as the reason.\9\
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                 \6\ Jacob Alex Klerman, Kelly Daley, and Alyssa Pozniak. 2014.
                Family and Medical Leave in 2012: Technical Report. Abt Associates
                Inc., https://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Technical-Report.pdf.
                 \7\ https://www.dol.gov/agencies/whd/fmla.
                 \8\ https://www.dol.gov/agencies/whd/fmla. Due to non-
                traditional work schedules, airline flight attendants and flight
                crew members are subject to a special hours of service eligibility
                requirement.
                 \9\ Jacob Alex Klerman, Kelly Daley, and Alyssa Pozniak. 2014.
                Family and Medical Leave in 2012: Technical Report. Abt Associates
                Inc., https://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Technical-Report.pdf.
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                 Some states and localities, including California, Connecticut,
                Massachusetts, New Jersey, New York, Oregon, Rhode Island, and
                Washington, have enacted paid family and medical leave laws that
                provide covered workers with the right to partial wage replacement
                through a state-run insurance program when they are not working due to
                their own or a family member's serious health needs or bonding with a
                new child.
                 Federal employees are now eligible for paid parental leave as well.
                On December 20, 2019, President Trump signed into law a new paid
                parental leave policy for eligible federal workers as part of the 2020
                National Defense Authorization Act.\10\ Under the new law, eligible
                federal workers are entitled to 12 weeks of paid parental leave for the
                birth, adoption, or fostering of a child that occurs on or after
                October 1, 2020.\11\ The rate of pay during the leave period will be at
                100 percent of the employee's salary. To be eligible, employees must
                have completed 12 prior months of federal service, and must return to
                duty for a minimum of 12 weeks after taking the leave.\12\ In addition,
                the President's 2021 Budget includes ``a proposal to provide at least
                six weeks of paid family leave to new mothers and fathers, including
                adoptive parents, so all families can afford to take time to recover
                from childbirth and bond with a new child.'' \13\
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                 \10\ Federal Employee Paid Leave Act, in National Defense
                Authorization Act for Fiscal Year 2020 (2020 NDAA), Public Law 116-
                92, Sec. Sec. 7601-7606, 133 Stat. 1198, 2304-08.
                 \11\ Eligible federal workers are employees covered by Title 5
                of the United States Code. Legislation has been introduced to
                include those covered by Title 38 as well. See S. 3104, 116th Cong.
                (Dec. 18, 2019), https://www.congress.gov/116/bills/s3104/BILLS-116s3104is.pdf.
                 \12\ See 2020 NDAA, Sec. Sec. 7602(a)(3)(E), (F); see also U.S.
                Office of Personnel Management. Memorandum for Heads of Executive
                Departments and Agencies. Paid Parental Leave for Federal Employees.
                December 27, 2019. https://www.chcoc.gov/content/paid-parental-leave-federal-employees.
                 \13\ Fiscal Year 2021 Department of Labor Budget in Brief.
                https://www.dol.gov/sites/dolgov/files/general/budget/2021/FY2021BIB.pdf.
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                 The Families First Coronavirus Response Act (FFCRA) requires
                certain employers to provide employees with paid sick leave or expanded
                family and medical leave for specified reasons related to COVID-19.\14\
                The Department of Labor's Wage and Hour Division administers and
                enforces the new law's paid leave requirements. These provisions will
                apply from April 1, 2020 through December 31, 2020.\15\
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                 \14\ Public Law 116-127, 134 Stat 178 (Mar. 18, 2020); 29 CFR
                part 826.
                 \15\ U.S. Dep't of Labor, Wage & Hour Div., Temporary Rule: Paid
                Leave under the Families First Coronavirus Response Act, https://www.dol.gov/agencies/whd/ffcra https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave.
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                II. Request for Public Comment
                 The Department seeks information about the need for, benefits of,
                and specific strategies to implement paid leave. Information from
                members of the general public, employers, employees, and the research
                community on paid leave policy and practice can inform the Women's
                Bureau in documenting, developing, and reporting on promising paid
                leave practices and provide valuable input for state and federal
                implementation of paid leave policies, including the benefits and costs
                associated with different approaches to paid leave.
                 As such, the Department seeks input from stakeholders, employers,
                and employees on the benefits of paid leave for workers and their
                families within the following general framework, as well as responses
                to the specific questions listed below.
                 In broad terms, the Department is seeking to understand the
                following:
                 The benefits of paid leave, the costs of paid leave, and
                the measurement of costs and benefits.
                 The beneficiaries of paid leave and the bearer of the
                costs.
                 The unique needs of workers and employers in regard to
                paid time off for care obligations.
                 The features of the existing public (e.g., state-
                administered) and private (employer-provided) programs that work well,
                reasons those features work well, and features and provisions that make
                a paid leave program successful for all stakeholders.
                 The features of the existing public and private programs
                that do not work well or are burdensome, the reasons why, and any
                features and provisions that present challenges for stakeholders.
                 Answers to the following questions: Are there barriers to
                implementing or improving paid leave? Are there regulatory barriers to
                providing paid leave? What could be done to improve existing programs,
                which include state and employer-sponsored paid options? What are the
                impediments, costs and otherwise, faced in implementing those
                improvements?
                 The challenges of balancing costs and benefits with paid
                leave and the differences in costs and benefits among types and sizes
                of employers, including small businesses.
                 The Department invites interested parties who have knowledge of
                and/or experience with workplaces and states with and without paid
                leave to submit comments, information, and data. The Department has
                provided the questions above as suggestions to frame the responses, but
                they are not the Department's sole interest. Comments on other paid
                leave issues are also welcome.
                 The Women's Bureau is looking for an assessment of paid leave in
                the U.S. from the general public and from a diverse array of
                stakeholders. Stakeholders include state and local officials,
                employers, unions, workers, individuals who are not currently employed,
                faith-based and other
                [[Page 43266]]
                community organizations, universities and other institutions of higher
                education, foundations, chambers of commerce, and other interested
                parties with experience or expertise in paid leave. DOL recognizes that
                some questions may be more relevant to particular respondents, but
                seeks as much information as respondents can provide on all questions
                in the request. Commenters should identify the question to which they
                are responding where possible.
                 Although the term ``paid leave'' may be used to refer to different
                types of policies, for the purposes of this information collection,
                paid leave means absence from work, during which an employee receives
                compensation, to care for a spouse, parent, child, or his or her own
                health. Specifically, paid leave is limited to circumstances such as
                the following:
                 The birth of a child and to care for the newborn child
                within one year of birth;
                 The placement with the employee of a child for adoption or
                foster care and to care for the newly placed child within one year of
                placement;
                 Caring for the employee's spouse, child, or parent who has
                a serious health condition; or
                 A serious health condition that makes the employee unable
                to perform the essential functions of his or her job.
                We request commenters to identify barriers or policies and to indicate,
                with a citation if possible, the source/level (e.g., federal, state,
                local) of the barrier or policy, as well as the types of leave (e.g.,
                parental leave for the birth or adoption of a child, care for a
                seriously ill family member, the employee's own serious illness, and/or
                other leave) that is impacted. If you are a business or organization,
                please include the number of employees at each worksite and in the
                organization/business as a whole when answering the questions below.
                 The Department suggests the following questions to frame the
                responses:
                 1. Who benefits from paid leave and who bears the costs?
                 2. What are the needs of workers and employers when it comes to
                paid time off for care obligations? What elements of the existing
                public (e.g., state-administered) and private (employer-provided)
                options work well? Why do they work well? Are there any features and
                provisions that make a paid leave program successful for all
                stakeholders?
                 3. What does not work well and why; and what are the existing gaps?
                What could be done to improve the existing patchwork of programs, which
                include state and employer-sponsored paid options? What are the
                impediments, costs and otherwise, faced in implementing those
                improvements?
                 4. How do costs and benefits balance with paid leave? Are there
                differences in costs and benefits among types and sizes of employers?
                What are the primary drivers of both costs and benefits? For example,
                are costs correlated with the duration of leave? Do the benefits of
                paid leave decrease after a certain duration of leave?
                 5. Are individual businesses, localities, states, or the government
                best equipped to provide standards for paid leave? Are employer-based
                or state-based programs more effective in the administration of paid
                leave programs?
                 6. Do employer-provided paid leave programs offer more generous
                benefits than state paid leave programs?
                 7. Do employers who already offer paid leave programs continue to
                do so when state mandates or programs are instituted, or does the state
                mandate standardize the paid leave program offered by employers in the
                state, leading some employers to drop more generous programs?
                 8. What are the features of an ideal paid leave program, from the
                perspective of a worker or employer? For example:
                 i. What would be the ideal duration?
                 ii. How much pay should be replaced? Should the rate of replacement
                vary depending on how long leave has lasted?
                 iii. Should it be permissible to take leave intermittently? Should
                there be a time period within which intermittent leave must be taken?
                 iv. Are there other program elements not listed here that are
                important to consider?
                 9. What are the benefits and/or burdens of having access to paid
                leave for yourself and your family?
                 10. If you do not have access to paid leave, have you experienced
                individual or family circumstances for which you would have taken paid
                leave if it had been available? How might paid leave have effected
                those particular situations or outcomes?
                 11. Do workers who take paid leave have difficulty reintegrating
                into the workplace?
                 12. What components currently make up or would make up a successful
                paid leave program at your business? (For example: Job protection, wage
                replacement level, duration of leave, minimum employment tenure allowed
                prior to accessing paid leave.)
                 13. What is your company's current paid leave policy? Include
                specific components such as job protection, wage replacement level,
                duration of leave, and minimum employment tenure allowed prior to
                accessing paid leave.
                 14. What are the benefits and costs of paid leave to your company
                and how are those benefits measured? Can they be quantified?
                 15. Are there impediments to making adjustments to your company's
                paid leave policy?
                 16. Does your company have established strategies for backfilling
                extended absences by employees out on paid leave, owing to
                circumstances like medical illness and treatment, the birth or adoption
                of a child, accident recovery, etc.? Please describe.
                 17. What are the benefits and/or burdens of operating a business in
                a jurisdiction that has paid leave laws?
                 18. What are the barriers to your company establishing a paid leave
                program?
                 19. Different types and sizes of businesses may face unique
                challenges to providing paid leave. Please describe unique challenges
                to your businesses, industry, or locale in offering paid leave.
                 20. What questions could be added to existing surveys, such as the
                American Time Use Survey or FMLA survey, that might inform paid leave
                policy?
                 21. What additional cost-benefit research for different sizes of
                employers, different localities, for state-mandated compared to
                employer-provided plans, or for employers and workers would be helpful
                to inform policy?
                 22. How will requirements for paid leave economically impact small
                businesses, small non-profits, or small governmental jurisdictions with
                a population of under 50,000? What are the costs, benefits, and are
                there alternatives that would minimize these impacts?
                 23. Are there key insights to be taken from FFCRA?
                III. Conclusion
                 The Department invites interested parties to submit comments,
                information, and data based on the questions provided in this RFI. The
                Department is requesting information on a number of paid leave topics,
                including the effectiveness of current state- and employer-provided
                paid leave programs, how access or lack of access to paid leave
                programs has impacted women and their families, and challenges faced by
                employers. The information provided by workers, employers, researchers
                and other stakeholders will help the Department identify promising
                practices
                [[Page 43267]]
                for models of existing paid leave programs.
                Laurie Todd-Smith,
                Director, Women's Bureau.
                [FR Doc. 2020-14874 Filed 7-15-20; 8:45 am]
                BILLING CODE 4510-HD-P
                

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