United States: Work/Life Balance And "Family Friendly" Regulation Changes

In keeping with its agenda to promote work-life balance and "family-friendly" measures, the government as announced the following extensions to existing employment rights.

The following changes apply to all expectant mothers whose due date falls on or after 1 April 2007:

• All female employees are entitled to up to 52 weeks of maternity leave, regardless of length of service
• The right to statutory maternity pay ("SMP") is increased from 26 weeks to 39 weeks. The rates of pay remain 90% of average earnings for the first 6 weeks, with the balance paid at the lower rate set by the government. For the year commencing 6 April 2007 the lower rate is £112.75 per week, or actual average earnings if less.
• A new right to take up to 10 "Keeping in Touch Days" is introduced. Subject to the agreement of both employer and employee, this enables a woman on maternity leave to do up to 10 days' paid work for her employer without triggering either the end of her maternity leave or her right to SMP (although her SMP entitlement will be offset against any contractual pay for a Keeping in Touch Day).
• To help employers to manage their resource planning more easily, if an employee intends to return to work earlier than the end of her full leave entitlement/a previously agreed date, she must give a minimum of 8 weeks' notice. (The previous requirement was for 28 days' notice).
• Various changes are made to the administration of SMP, both to accommodate Keeping in Touch Days, and also to allow the maternity pay period during which SMP is paid to start on any day of the week. (Previously all maternity pay periods began on the Sunday following the employee's last day at work).

Equivalent changes are made in respect of the right to Statutory Adoption Leave and Statutory Adoption Pay (although Statutory Adoption Pay remains payable at a flat rate equivalent to the lower rate of SMP).

The statutory right to request a change to working arrangements in order to fulfil caring responsibilities is currently available only to employees with parental responsibility for a child aged under 6, or under 18 if the child is disabled.

With effect from 6 April 2007 the scope of this provision is extended to employees who have, or expect to have, caring responsibilities for an adult who is their spouse, partner, civil partner or relative or who lives at the same address as them. For these purposes a "relative" includes a mother, father, adopter, guardian, special guardian, parent-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister, sister-in-law, uncle, aunt or grandparent. Step relatives and half-blood relatives are also included.

The regulations do not specify a particular level of "care" for adults, although the guidance provided indicates a wide interpretation. For example, "care" can legitimately include anything from help with dressing, bathing etc and nursing tasks such as changing dressings through to helping with paperwork or simply keeping an invalid company. Unless there is a suspicion of abuse of the right, employers are generally expected to take requests at face value and focus on whether or not the business can accommodate the changes requested.

In order to make a request to work flexibly, the employee must have at least 26 weeks' service and must not have made a previous request within the past 12 months. The process of application is exactly the same as for those making requests in relation to parental responsibilities. Employees must prepare a business case which explains how the flexibility requested can be accommodated and employers must give the request timely and proper consideration, but may refuse on a number of grounds. If an application to work flexibly is granted, it constitutes a permanent change to the employee's contract and any request for a further change is subject to the same qualification requirements and process.

Although the detail of the regulations is still the subject of consultation, it is almost certain that with effect from 1 October 2007 the statutory minimum right to paid annual leave will be increased from 4 weeks/20 days for an individual working a 5 day week to 28 days.

This change is made in response to trade union pressure to give everyone the right to 8 UK bank or public holidays, addition to the basic 4 week entitlement.

Many employers already give their employees a minimum of 4 weeks plus 8 bank holidays, but it is estimated that there are up to 6 million workers who will benefit from the change in the law.

The proposal is to phase in the right to an additional 8 days, so that an additional 4 days will be due with effect from 1 October 2007 and the balance from 1 October 2008.

The Work and Families Act 2006 gives the government the power to make regulations introducing the following further changes within the next couple of years:

• An extension of SMP to 52 weeks, to mirror the maternity leave entitlement
• A new right to Additional Paternity Leave of up to 26 weeks, if the mother of the child returns to work before the expiry of her full 52 weeks statutory maternity leave entitlement. Draft regulations are expected this year.

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