[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

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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

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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]
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