H.461—An act expanding employee access to unpaid leave passed both the House and Senate, its fate now in the hands of Governor Scott. Having failed to pass a taxpayer-funded paid family leave program, lawmakers pivoted to this new mandate on Vermont businesses that they provide up to twelve weeks of unpaid leave to care for themselves or a family member in times of… well, according to the bill, pretty much any reason at all.
And just because the word “unpaid” appears in the title doesn’t mean this doesn’t come at a significant cost to businesses, especially small businesses that don’t have many employees who can cover for someone absent for an extended period. As Megan Sullivan, VP of Government Affairs for the Vermont Chamber of Commerce, testified,
When employers are already operating on thin margins, the cumulative impact of new state level mandates whether related to employment or energy or reporting can be death by a thousand cuts on their ability to remain competitive. Businesses are working hard to hold on to every contract and every customer often competing directly with companies and neighboring states that may not be subject to the same regulatory requirements. So, it’s important to underscore that while H.461 outlines unpaid leave, that does not mean it’s not without cost to employers. If an employee is absent even temporarily, their responsibilities must be absorbed by other staff or deferred or backfilled. This can mean lost productivity, missed deadlines, or increased overtime expenses, all of which can, impact the bottom line. These operational costs can be especially burdensome on small employers where one person’s absence can significantly disrupt workflow, customer service, or scheduling. Many Vermont businesses simply don’t have enough depth or bench strength to absorb such losses easily, especially when those losses are recurrent or layered on top of other economic pressures.
These arguments and others like them fell on deaf ears.
So, what does ‘greater access to unpaid leave” mean? The intent of the law says “to align Vermont’s family leave policies with inclusive and equitable standards, ensuring that LGBTQ+ families, workers with low income, and individuals in nontraditional family structures have equal access to caregiving leave without undue burden.” And this is where things get quagmiringly complicated. For example, who under this law is considered a “family member,” non-traditionally speaking? Forgive the really long cut and paste, but it serves the point, and FYI “In loco parentis” is defined here as an “individual [who] has day-to-day responsibilities to care for and support a child, regardless of biological or legal ties” [emphasis added]…
(A) regardless of age, an employee’s biological, adopted, or foster child; an employee’s stepchild or legal ward; a child of the employee’s spouse or civil union or domestic partner [so far so good, but here it comes…]; or a child to whom the employee stands in loco parentis, regardless of legal documentation [um, what?]; an individual to whom the employee stood in loco parentis when the individual was under 18 years of age [Determined how and by whom?]; or any individual for whom the employee provides caregiving responsibilities similar to those of a parent-child relationship [Defined how and verified by whom?]; (B)(i) a parent of an employee or an employee’s spouse or civil union or domestic partner, regardless of whether the relationship to the employee or the employee’s spouse or civil union or domestic partner is a biological, foster, adoptive, or step relationship; (ii) a legal guardian of an employee or employee’s spouse or civil union or domestic partner; or (iii) a person who stands in loco parentis for the employee or who stood in loco parentis when the employee or employee’s spouse or civil union or domestic partner was under 18 years of age; (C) a person to whom the employee is legally married under the laws of any state or a civil union or domestic partner of an employee; or (D) a grandparent, grandchild, or sibling of the employee or the employee’s spouse or civil union or domestic partner, regardless of whether the relationship to the employee or the employee’s spouse or civil union or domestic partner is a biological, foster, adoptive, or step relationship.
Given a little creativity, those 262 words could be distilled down to “practically anyone.” But the mess doesn’t stop there. WHY can an employee take up to twelve weeks of unpaid leave? Again, apologies for the long cut and paste, but you’ll get the picture….
… the serious health condition of the employee; or (B) the serious health condition of the employee’s child, stepchild or ward who lives with the employee, foster child, parent, spouse, or parent of the employee’s spouse family member.
… the employee’s pregnancy; (B) the employee’s recovery from childbirth or miscarriage; 5 (C) the birth of the employee’s child and to care for or bond with the child within one year after the child’s birth; or (D) the initial placement of a child 18 years of age or younger with the employee for the purpose of adoption or foster care and to care for or bond with the child within one year after the placement for adoption or foster care.
… the employee or the employee’s family member is a victim or alleged victim of domestic violence, sexual assault, or stalking;
… to seek or obtain medical care, counseling, or social or legal services, either for themselves or for a family member;
… to recover from injuries;
… to participate in safety planning, either for themselves or for a family member;
… to relocate or secure safe housing, either for themselves or for a family member;
… an accident, illness, injury, disease, or physical or mental condition that: (i) poses imminent danger of death; (ii) requires inpatient care in a hospital, hospice, or residential medical care facility; or (iii) requires continuing treatment by a health care provider;
… rehabilitation from an accident, illness, injury, disease, or physical or mental condition….
In other words, and again with a little creativity, one or another part of this could be applied to pretty much any situation. “Hey, boss, my special friend who’s been like a daughter to me is being stalked and I need to help secure safe housing for her, we’re thinking out West for the twelve weeks till things cool off. Why, yes, this does happen to coincide with the ski season. See you next spring!”
Now, the employer does have the opportunity to request verification regarding these claims, but when the law does not meaningfully define these relationships and even states they need not have a biological or legal basis, how can they possibly be effectively challenged? And in what venue? A court? How much will such a challenge cost?
Alternatively, the bill would allow the employer to not hold the spot for an absent employee if, “…the employee performed unique services and hiring a permanent replacement during the leave, after giving reasonable notice to the employee of intent to do so, was the only alternative available to the employer to prevent substantial and grievous economic injury to the employer’s operation.” But, again, how does the employer prove this, to whom, and at what cost in legal fees and time?
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