During a hearing held on May 10, 2012 by the Senate Committee on Health, Education, Labor and Pensions (HELP), senators focused on workplace flexibility. At the outset of the hearing -- Beyond Mother’s Day: Helping the Middle Class Balance Work and Family – Committee Chairman Tom Harkin (D-IA) claimed that current workplace laws have not kept pace with the realities of working life. Harkin stated, for example, that the Family and Medical Leave Act (FMLA) covers only about half of the workforce and that employees needs a “basic minimum floor” of paid sick leave.
Harkin is the chief sponsor of the Rebuild America Act, a bill that, among other things, would create a national paid sick day standard. Specifically, this bill incorporates the Healthy Families Act, a measure last introduced in May 2011 that would require employers to provide employees with paid sick leave. Under the terms of this measure employees would earn one hour of paid sick time for every 30 hours worked, up to a maximum of 56 hours (seven days) annually. The hearing witnesses debated the merits of requiring most employers to provide paid sick leave.
Ranking member Mike Enzi (R-WY) offered the suggestion to panelists of testing the requirement on federal contractors. Ann O’Leary, Director of the Children and Families Program, Center for the Next Generation, said she has studied and written a paper on the same suggestion.
O’Leary also pointed out during questioning that the Pregnancy Discrimination Act (PDA) has made little difference for lower-educated workers, as the Act requires employers not to discriminate against women who are having a child, but provides no affirmative right to take leave.
Speaking on behalf of the Society for Human Resource Management (SHRM), Juanita Phillips described a variety of flexible leave policies her employer, Intuitive Research and Technology Corp., provides to its employees. She argued against mandated paid sick leave, claiming that the qualifying events set forth in the Healthy Families Act were “ill-defined” and would force employers to comply with another set of regulations that impose “inconsistent obligations.” She stated that the law also would disrupt an employer’s current paid leave practices and could require them to drop existing policies in order to comply with a federally-mandated one. Phillips claimed that many employers would be forced to cut back on other benefits or pay increases in order to comply with the law. Phillips urged the committee not to impose new mandates that would erode a firm’s competitive edge.
Phillips noted also that SHRM has developed a number of points that should be considered for any bill that would affect an employer’s leave policies. Among other suggestions, SHRM recommends that any such legislation include a statutorily-defined safe harbor so as not to punish employers that already provide generous leave benefits.
Judith Lichtman, Senior Advisor with the National Partnership for Women and Families, supported the Rebuild America Act as well as bills that would expand the FMLA and promote workplace flexibility. In particular, Lichtman was in favor of expanding this leave law to include part-time workers and victims of domestic violence and revising the definition of family members to include same-sex spouses and their children. Such provisions were included in the Domestic Violence Leave Act (H.R. 3151), legislation that would allow employees to take leave under the FMLA to address acts of domestic violence, sexual assault and stalking aimed at themselves, a spouse (including domestic partner and same-sex spouse), parent or child.
A related bill has been reintroduced in both chambers: the Family and Medical Leave Inclusion Act (H.R. 2364, S. 1283), which would amend the FMLA to permit eligible employees to take up to twelve weeks of unpaid leave to care for a same-sex spouse, domestic partner, grandparent, grandchild, parent-in-law, son- or daughter-in-law, child of a domestic partner, or adult child or sibling who has a serious health condition.
Measures Introduced this Year
In addition to the bills discussed during the hearing, a number of other measures have been introduced in recent months that address work/family balance. Legislation was recently introduced in the House of Representatives that would require employers to make reasonable accommodations for pregnant employees. The Pregnant Workers Fairness Act (H.R. 5647) would also institute certain anti-discrimination protections for workers who request a reasonable accommodation related to their pregnancy, childbirth, or associated medical conditions, and prevent employers from requiring that a pregnant employee take leave if she could perform her job with a reasonable accommodation.
In February of this year Rep. Carolyn Maloney (D-NY) and Sen. Bob Casey (D-PA) reintroduced the Working Families Flexibility Act (H.R. 4106, S. 2142), a bill that would provide employees with a statutory right to request flexible work terms and conditions. That same month the Equal Employment Opportunity Commission (EEOC) conducted a hearing to address the laws that govern pregnancy- and caregiver-based employment discrimination.
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