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Pennsylvania House Bill 1713: Pennsylvania Family and Medical Leave Act

June 28, 2011

On June 22, 2011, nine members of the Pennsylvania General Assembly introduced House Bill 1713, known as the Pennsylvania Family and Medical Leave Act. Like its federal counterpart, the PA FMLA applies generally to employers who employ 50 or more individuals within a 75-mile radius of the work location.  In order to be eligible for leave under the PA FMLA, employees must be employed for 12 months and work at least 1,250 hours in the 12 months immediately preceding the date on which leave will begin.  Importantly, the 12 months of employment need not be consecutive in order to satisfy that aspect of the eligibility criteria.

House Bill 1713 provides that eligible employees are entitled to 6 weeks of the same type of leave afforded under the FMLA within a 12-month period in order to care for a sibling, grandparent or grandchild.  The sibling, grandparent or grandchild of the eligible employee must not have a living spouse, child over 17 years of age, or parent under 65 years of age.  If eligible for such leave, the employee is afforded all of the same benefits and protections of the FMLA, including, but not limited to, reinstatement rights and continuation of health care benefits.  Because the bill provides that the leave afforded under Pennsylvania law is the “same type of leave” afforded under the FMLA, we can assume that the leave is unpaid, and no specific provision for providing paid leave exists. As with FMLA leave, employers may require employees to utilize their accrued paid leave consistent with their leave policies.

Importantly, however, HB 1713 fails to address a few very important questions.  First, HB 1713 fails to recognize an area of potential overlap with the FMLA.  For example, under the FMLA, an individual who stands in loco parentis to a child is entitled to 12 weeks of leave within the applicable 12-month period to care for that child.  An individual stands in loco parentis to a child if he or she takes on the role of the parent, assuming and discharging the obligations of a parent to that child.  It is foreseeable – and specifically contemplated by the federal Department of Labor – that a grandparent may stand in loco parentis to a child.  If the child has a serious health condition  as defined by the FMLA, then the grandparent is entitled to 12 weeks of leave to care for the child. It is foreseeable that a child may not have living parents and may be in the legal custody of an individual other than a grandparent.  In such circumstances, the grandparent may be eligible for leave under both the FMLA and the PA FMLA.  The second unanswered question is whether the grandparent would be entitled to a total of 12 or 18 weeks of leave.  HB 1713 fails to address whether leave would run concurrently with or consecutive to leave under the FMLA.  One may question whether the drafters considered the potential for such overlap. Clearly, these issues should be addressed in Committee before any action is taken upon a final version of the bill.

HB 1713 was referred to Committee on June 22, 2011.  We will provide updates as they become available.  This information was prepared by Claudia M. Williams, a Partner in the Labor and Employment Group at Rhoads & Sinon LLP. She may be contacted by telephone (717.237.6737) or e-mail at cwilliams@rhoads-sinon.com.