Seyfarth Synopsis: Recent research suggests employers will manage an increasing number of employee requests for caregiving leave.

The U.S. Department of Labor’s Chief Evaluation Office has issued research briefs discussing two commissioned studies that examined paid family leave programs in California, New Jersey, and Rhode Island. Those studies reveal trend lines in paid family leave and may assist employers in anticipating future compliance challenges.

Currently, requests for leave to care for infirm relatives (“caregiving leave”) pale in comparison to requests for leave to care for newborn children (“bonding leave”), but that could change. In one of the studies examining the use of paid family leave in caregiver and parental groups, the researchers found that “[u]tilization of paid family leave programs in both California and New Jersey has grown steadily since implementation,” but claims for bonding leave far outweighed claims for caregiving leave. Russell Tisinger et al., L&M Policy Research, LLC, Understanding Attitudes on Paid Family Leave: Discussions with Parents and Caregivers in California, New Jersey and Rhode Island 8 (July 2016). For example, in 2014, 88 percent of claims in California were for bonding leave. Id. at 9. However, in summarizing the second study — focused exclusively on the effect of paid family leave benefits on adult child caregivers — the researchers noted that one in five individuals will be 65 or older by 2030, foretelling an upswing in the percentage of workers who may find it necessary to take leave and care for an aging relative. Brant Morefield et al., L&M Policy Research, LLC, Leaving it to the Family: the Effects of Paid Leave on Adult Child Caregivers 3 (July 2016). Of course, any increase in such requests could be mitigated by employees who choose to forego or limit leave and request the services of paid caregivers. In fact, the Bureau of Labor Statistics projects employment of home health aides will grow of 38 percent from 2014 to 2024 and notes “[a]s the baby-boom population ages and the elderly population grows, demand for the services of home health aides to provide assistance will continue to increase.”

Demographic shifts are not the only driver of the potential increase in requests for caregiving leave. Legislative and administrative action may also influence caregiving leave utilization rates, as well. As we have discussed, California recently decided to increase the level of benefits provided to individuals in its Paid Family Leave program, and only days later, New York passed a Paid Family Leave law that will go into effect on January 1, 2018. As paid family leave benefits expand into other jurisdictions, so may employees’ willingness to take leave and care for an infirm relative. As the researchers note, “the most commonly cited reason for unmet leave was an inability to afford it.” Morefield et al., at 3.

Many employers, in jurisdictions with paid family leave or otherwise, have developed robust bonding leave policies and/or policies addressing unpaid leave pursuant to the Family and Medical Leave Act. However, due to its comparative infrequency, employers may not have devoted particular attention to caregiving leave. For the reasons above, employers should scrutinize their policies related to paid time off, leaves of absence, and family and medical leave. As noted in the aforementioned studies, there may be important practical differences between requests for bonding leave and leave for adult caregiving purposes, insofar as “[e]ldercare givers typically hold a different place in the earnings life cycle than new parents and face leave spells that likely differ from a maternity- or paternity-type leave.” Id. at 4. Thus, caregiving leave requests likely require individualized attention and employers should evaluate their related procedures to ensure they reflect that reality. Of course, policies and procedures should also be crafted in harmony with other employee benefits, should address the interplay between paid and unpaid leave, where applicable, and should satisfy the particular requirements of state or local law.