The question posed above emphasizes a concern that is a constant undercurrent of stress for many Americans. While Americans are guaranteed twelve weeks of unpaid leave without losing their employment, too many Americans cannot take advantage of this leave due to financial constraints. While most Americans would agree that paid leave would drastically improve their lives by allowing them to take care of their families, disagreements as to how this expanded leave would look leave the question gridlocked and slows down any substantial progress.
The irony of not having expanded paid parental leave in the United States is exemplified by previous decades’ policies and agendas that were allegedly centered on promoting a strong family life in the United States. For example, in 1971, the United States nearly passed the “Comprehensive Child Development Bill of 1972,” which would have established a national day care system, designed to help parents work and care for children simultaneously. This act passed in the Senate 63 to 17 and in the House 211 to 187. When the bill was handed to President Nixon, however, he vetoed it, stating that it would implement a “communal approach to child-rearing” and that it would weaken families. This veto was also a means to resist feminist demands for greater equality for women.
The Family Medical Leave Act did not come to fruition until twenty years later. The FMLA allows eligible employees to take up to 12 work weeks of unpaid leave during any 12-month period to care for a new child, care for a seriously ill family member, or recover from a serious illness. In order to be eligible for FMLA leave, an employee must have worked for the employer for at least 12 months, have worked at least 1,250 hours over the past 12 months, and work for an employer with at least 50 employees within a 75-mile radius. Several states have passed laws providing additional family and medical leave protections for workers. This act was monumental in that it protected all employees who were seeking to start a family, take care of their families, or take care of themselves.
The FMLA has its limitations. Independent contractors, who make up approximately a quarter of the United States workforce, are not eligible for FMLA leave. The FMLA covers both public- and private-sector employees, but certain categories of employees, including elected officials and highly compensated employees, are excluded from the law or face certain limitations. Further, the requirement to work 1,250 hours over the span of 12 months excludes new employees and potentially dissuades people from seeking new job opportunities who are counting on this leave as they anticipate changes to their family life.
Further, the ultimate limitation is that the leave is unpaid. A large portion of Americans, whether in single or double income households, cannot afford twelve weeks of unpaid leave. This factor is largely the driving cause for why extended family leave is a bi-partisan issue with recognition from both parties. The partisanship arises in debates about how this leave should be funded.
In various surveys, a majority of Americans express preference that the employer pays for this leave. Such policy could be drafted similar to the FMLA in that only employers with more than fifty employees would be subject to the mandated payments. This policy could save costs for small businesses, but it could also dissuade employees from working for companies without this benefit.
Less popular options for funding parental leave include funding the payments with money employees have saved for retirement, delaying retirement opportunities, or paying though a payroll tax. These differences in opinion, and not necessarily the idea of paid family leave in itself, are the likely culprit as to why more comprehensive legislation has not yet been enacted in the United States.
Until Congress passes legislation to support Americans with paid leave, our Firm will remain adamant in fighting for the rights that do exist under the FMLA. We will also keep a close eye on developments in the law so as to provide our clients with the most up-to-date information regarding FMLA leave and other accommodations. If you have questions about utilizing your FMLA leave or believe your rights have been violated under the FMLA, please do not hesitate to contact our experienced employment law attorneys.