Estée Lauder Companies is currently in a legal battle amid accusations that, by not providing equal paid leave to both new mothers and fathers, they are violating federal antidiscrimination laws.
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To date, 7 states, 30 cities, 2 counties, and Washington, D.C., have paid sick time laws on the books. In addition, if your business contracts with the federal government, you may be required to offer paid sick leave to employees who perform work on or in connection with a covered contract. On top of these paid sick time laws, a number of states have paid or unpaid family/medical leave laws with pregnancy, parental, and/or adoption leave provisions and paid or unpaid leave laws for employees who vote, are victims of crimes, elect to attend their children’s school activities, donate blood and/or bone marrow, and serve as emergency response providers, jurists, and court witnesses. Of course, there is also a federal military leave law and state laws with military leave provisions that exceed the federal law.

No question, the list of state and municipalities adding paid and unpaid leave laws is ever-growing. For multistate employers, the patchwork of leave laws between states (or even within the same state) can create big headaches. These employers are faced with the choice between adopting multiple policies that offer different levels of benefits based on location or developing one policy that is applied company-wide and that offers the most generous terms for each particular leave provision and law.

Thankfully, a number of states have recognized that multiple laws create confusion, compliance concerns, and a competitive disadvantage for employers. These states have passed legislation that prohibits local governments from passing sick leave laws. Currently, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Mississippi, North Carolina, Oklahoma, Tennessee and Wisconsin have passed such pre-emption laws.

If your business is located in a state, city or county that does not currently require paid sick time or family/medical leave, you’re not out of the woods. It’s only a matter of time before federal law mandates universal paid leave.

President Donald Trump has proposed a plan to grant mothers and fathers up to six weeks of paid leave following the birth or adoption of a child (funded through existing unemployment insurance programs) and Congress seems willing to oblige. With an aging boomer workforce, Millennial workers starting families, a focus on health and wellness, and a need to care for aging loved ones, there’s growing support for a nationwide law that provides paid time off for illness and parental and caregiver needs.

According to a December 2016 survey conducted by the Pew Research Center, 85 percent of Americans believe workers should receive paid leave to deal with their own serious health condition, 67 percent say that workers should receive paid leave to care for a family member with a serious health condition, 82 percent believe that mothers should receive paid leave following birth or adoption of a child, and 69 percent say fathers should receive this same benefit.

But don’t base your policy on these results! If you do, you could find yourself fighting a discrimination complaint similar to the one that Estée Lauder Companies is battling. On August 30, 2017, the Equal Employment Opportunity Commission announced that it had filed suit against the global cosmetics company, accusing it of violating federal antidiscrimination laws by providing male employees who are new fathers with parental leave benefits that are inferior to those provided to female employees who are new mothers. Estée Lauder provides new mothers with six weeks of paid leave for child bonding in addition to paid leave to recover from childbirth, while fathers receive only two weeks of paid leave for child bonding.

Estée Lauder’s practice is not uncommon. According to a 2016 survey conducted by the Society for Human Resource Management, on average, organizations that offered paid leave for a new child provided mothers with 41 days of paid maternity leave, compared to 22 days of paid paternity leave for fathers. Despite this finding, Estée Lauder is likely fighting a losing battle, given that their leave provisions for child bonding differ based on gender. The firm may have to learn the hard way that antidiscrimination laws trump tradition.

Indeed, what’s legal is not always what’s logical. Because the provisions in most leave laws are complex, new policies must be carefully and thoughtfully developed. In most cases, a new sick, family or parental leave policy will impact other company policies, practices and benefits. To minimize risk, if your business is covered by a law requiring paid leave of any type or if you believe it’s time to adopt a paid leave benefit to help you attract and retain talent, it is wise to seek counsel from an experienced human resources professional. A qualified adviser can help you develop a comprehensive policy that complies with applicable employment regulations and is suitable for your company in light of market conditions, cost considerations, current benefit offerings, employee demographics, and other relevant factors — no easy task.

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I don’t know about you, but with all this discussion about time off, I’m ready for a paid leave!

Jean is president of Seawright & Associates, a management consulting firm located in Winter Park, Florida. Since 1987, she has provided human resource management and compliance advice to employers across the country. She also consults with employer-members of trade associations, including, among others, The Garden Center Group. She can be contacted at 407-645-2433 or jseawright@seawright.com. Note: The information in this article is not legal advice. For legal advice, readers should consult with an attorney.