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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

December 14, 2020

What Employers Can Expect Under the Biden Administration: Paid Federal Leave Benefits

This alert is part of a continuing series of alerts covering changes employers can expect to labor and employment policy from President-elect Joseph Biden’s administration.

President-elect Biden and Vice President–elect Kamala Harris have pledged to make significant changes to the American workplace, including an expansion of workers’ rights. Though there is still uncertainty, Barclay Damon’s alert series is intended to assist employers in anticipating changes they might see under the Biden administration.

PAID FEDERAL LEAVE BENEFITS

The federal Family and Medical Leave Act requires eligible employers to provide unpaid family leave. However, unlike many other industrialized nations, the United States does not have national standards on paid family or sick leave for employees.

For federal government employees, the Federal Employee Paid Leave Act took effect in October 2020 and grants federal employees 12 weeks of paid parental leave following the birth or placement of a child. The policy, part of the National Defense Authorization Act for Fiscal Year 2020, will apply to 2.1 million civilian workers employed by the federal government, though employees must have been in federal service for at least a year to be eligible.

President-elect Biden has stated he supports providing up to 12 weeks of paid family and medical leave. We expect the Biden administration to support expansion of paid leave benefits to private employees during the president-elect’s first term.

President-elect Biden has indicated his support for the Family and Medical Insurance Leave Act, known as the FAMILY Act. The FAMILY Act, introduced in 2019 in the House of Representatives and in the Senate, if passed, would create a national insurance program to provide workers up to 12 weeks of partial income for their own serious health condition or that of an immediate family member and for the birth or placement of a child. The program would be funded by employee and employer payroll contributions.

While there currently is no federal law requiring all employers to provide all employees with paid sick leave when they or a family member have a short-term illness that does not permit them to work, the Families First Coronavirus Response Act (FFCRA), which took effect in April, is a temporary measure that provides COVID-19-related paid sick leave and paid family leave benefits to certain eligible workers. President-elect Biden has voiced support for universal paid sick leave and other leave provisions under the FFCRA.

For now, many employers are required to provide up to 80 hours of paid sick leave benefits if employees need leave to care for their own or someone else’s coronavirus-related issues. The FFCRA also provides workers with job-protected, paid leave when they cannot work—either onsite or remotely—because their child’s school or child care service is closed due to the public health emergency.

FFCRA’s emergency paid-leave provisions apply to certain public employers and businesses with fewer than 500 employees, and there are exceptions available for small businesses and companies that employ health care workers.

It is likely the coverage expansions under the FFCRA, which are set to expire December 31, 2020, will be renewed under the Biden administration. In addition, President-elect Biden is likely to support a bill that would make these benefits available to not only employees but also gig workers and independent contractors.

Barclay Damon will continue to monitor these and other anticipated changes to labor and employment policy under the Biden administration. Further alerts in this series will be forthcoming over the next several weeks.

If you have any questions regarding the content of this alert, please contact Carolyn Marcotte Crowley, partner, at ccrowley@barclaydamon.com; Siobhan Tolan, associate, at stolan@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area.

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