Tax News

Governors Ask for IRS Guidance on State Paid Leave Program Taxation

By Kelly Hanley, Esq., Chicago Tax Attorney

One area of tax law and policy that has recently garnered significant attention involves the taxation of state paid leave programs. Since the early 2000s, over a dozen states have enacted laws for paid family and medical leave, aiming to strengthen the national safety net. However, this progress has led to a new challenge: the unclear federal tax treatment of these state programs.

As of January 24, 2024, approximately 13 states and the District of Columbia have adopted such programs, yet the lack of definitive IRS guidance on their tax treatment has created a cloud of uncertainty for both employers and employees​​​​.

Background of State Paid Leave Programs

State paid leave programs, operating as social insurance systems, fill an important gap in America’s social safety net. They generally provide temporary paid leave for various reasons, including medical emergencies, childbirth, and family member’s military deployment. These programs are funded through premiums paid by both employers and employees, and the benefits are disbursed relative to the employees’ base wages. However, the structure and implementation of these programs vary significantly across states. For instance, in states like Colorado, the employer is responsible for the premium, with the discretion to deduct a portion from the employee based on certain criteria​​​​.

The IRS’s Role and the Current Ambiguity

The IRS’s role in providing guidance on the federal tax treatment of these state-level programs is critical. The current ambiguity, stemming from outdated and non-definitive IRS guidance from 2005, has led to confusion among taxpayers and state authorities. With the expansion of state programs, the need for updated IRS guidance is more pressing than ever. This guidance should ideally address issues like the taxability of benefits and premiums, whether taxability depends on itemizing deductions and claiming the State and Local Tax (SALT) deduction, and the implications when the amount of the benefit exceeds the premiums paid​​​​.

The Risk of Double Taxation and its Implications

A significant concern raised by state governors in their recent letter to the IRS is the risk of double taxation. Since these programs operate similarly to other social insurance schemes, taxing both the premiums and the benefits can effectively result in double taxation. This situation is particularly burdensome for low and moderate-income individuals who rely on these benefits. The absence of clear federal guidance leaves these individuals uncertain about potential tax obligations, which could amount to thousands of dollars. This uncertainty extends to employers as well, who face confusion regarding the calculation of payroll taxes and the reporting of premiums withheld from employees​​.

The Need for Clear IRS Guidance

The governors’ appeal for clear and updated IRS guidance is a call to action to address this policy gap. Such guidance would not only provide much-needed clarity to taxpayers and employers but also ensure that participants in these programs are not unfairly burdened by taxation. It would help define the tax responsibilities associated with premiums and benefits, guiding both state authorities and taxpayers in their compliance efforts. The IRS’s response to this call for guidance will be a critical step in ensuring the effective and equitable implementation of state paid leave programs across the nation​​​​.


The evolving landscape of state paid leave programs presents a unique challenge to the IRS and taxpayers alike. The call for updated IRS guidance reflects the need for a clear and consistent approach to the taxation of these programs. As states continue to develop and implement paid leave laws, the IRS’s role in providing definitive guidance becomes increasingly vital. Addressing this issue is not just about compliance and tax policy; it’s about supporting the financial stability and well-being of American workers and their families. As we await the IRS’s response, the dialogue surrounding this issue underscores the importance of adaptability and responsiveness in tax law and policy to meet the changing needs of society.