The History of Family Leave Policies in the United States

by Megan A. Sholar

Family leave policies allow workers to take time off from their jobs to care for family members. Maternity leave is granted to mothers around the time of childbirth or adoption; paternity leave is reserved for fathers around the same time. After maternity and paternity leave end, parental leave provides gender-neutral leave for parents to care for small children. Many countries have separate programs that offer leave to care for a sick or elderly family member. In the United States, however, family leave policies often group together leave for new parents, leave to care for a family member with a serious illness or injury, and leave to care for an employee’s own illness or injury.

In most countries, family leave policies include wage replacement; however, such policies vary significantly throughout the world. At one extreme, a number of countries in Northern and Eastern Europe guarantee a full year of paid maternity leave. Although most nations have policies that are far less generous, almost all of them provide some amount of paid leave for new mothers, with the majority guaranteeing at least fourteen weeks of paid maternity leave. Leave benefits for fathers have also become more common in recent years; currently almost ninety countries provide men with paid leave in the form of either paternity or parental leave. There are only eight countries in the world that do not guarantee paid family leave at the national level for men or women. Most of them are classified as low- or middle-income states: Marshall Islands, Micronesia, Nauru, Palau, Papua New Guinea, Suriname, and Tonga. But the eighth country on the list is among the wealthiest in the world: the United States. [1]

The United States has historically lagged behind most of the developed—as well as developing—world with regard to family leave benefits. It was not until 1993 that the United States passed the Family and Medical Leave Act (FMLA), granting certain categories of women and men up to twelve weeks of unpaid job-protected leave for the following reasons: the birth and care of a newborn child; the placement of a son or daughter for adoption or foster care; to care for an immediate family member (spouse, child, or parent) with a serious health condition; and the employee’s own serious illness or injury. The act contains numerous eligibility requirements, however: employees must work in either a public agency or a private company with at least fifty employees within a seventy-five mile radius; the employee must have been employed by the company for at least one year and have worked at least 1,250 hours in that year; and employees in the top 10 percent of the company’s pay scale may be excluded. As a result of the stringent parameters of the law, only about 60 percent of the workforce is covered. [2] Despite the shortcomings of the FMLA, its passage was a major accomplishment. The law would go on to help millions of workers by ensuring their job security while on leave. Moreover, it was a symbolic victory that demonstrated the significant role that policy makers can and should play in improving the work-life balance of American workers.

In the first half of the twentieth century, women were typically treated as temporary workers, assumed to be in the workplace only until they got married and began to raise children. But during World War II, many women entered the workforce to replace their departed husbands’ salaries and to support the war effort. When the war ended, a significant number of women remained in the workforce and attitudes toward their employment slowly began to shift. [3] With more women in the labor force, employers and lawmakers were forced to address the issue of pregnancy on the job. In the 1960s, at the onset of the second-wave of feminism in the United States, public policy concerning pregnant women began to change. In 1972 the Equal Employment Opportunity Commission (EEOC) drafted guidelines that required employers to treat disabilities resulting from pregnancy, such as miscarriage, abortion, or childbirth and recovery, in the same manner as other temporary disabilities. Similarly, the Pregnancy Discrimination Act (PDA) of 1978 amended Title VII of the 1964 Civil Rights Act to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions. The PDA does not provide time off to care for a new child, however, which means that many women still had to leave the workforce after giving birth. Therefore, activists began to concentrate their efforts on the passage of a family leave bill.

The earliest version of the FMLA, the Family Employment Security Act (FESA) of 1984, called for up to twenty-six weeks per year of unpaid, job-protected leave to care for a new child, a child’s illness, a spouse’s disability, or the employee’s own disability. Most activists actually wanted paid leave, but they worried that such a bill would not pass. Although the FESA was never formally introduced in Congress, it opened a legislative dialogue on family leave and set the stage for future bills. In 1985 Representative Patricia Schroeder (D-CO) introduced the Parental and Disability Leave Act, which mandated eighteen weeks of unpaid, job-protected leave for new parents, as well as twenty-six weeks of leave to care for a sick child or the employee’s own temporary disability. The bill could only make it through two House subcommittees before stalling. When a new family leave bill was introduced in the 1986 legislative session, its name was changed again to the Parental and Medical Leave Act. As a result of pressure from Republicans, the amended version raised covered company size from five to fifteen employees, set eligibility requirements at five hundred hours or three months of employment, and changed the total time available for either medical or parental leave to thirty-six weeks over a two-year period. At the same time, the American Association of Retired Persons successfully lobbied to include expanded coverage that would allow employees to take time off to care for a spouse or elderly parent, in addition to a child. [4] For that reason, the bill underwent one final name change in June 1986 to become the Family and Medical Leave Act.

From 1986 to 1990, legislators continued to debate the details of the FMLA, making compromises on the generosity of benefits and the requirements to qualify for leave. In May 1990 the House successfully passed the bill; the Senate followed suit one month later. But on June 29, President George H. W. Bush vetoed it. In a written statement, he declared that he supported family leave, but only if businesses were allowed to provide it voluntarily. [5] The following year, a new version of the FMLA with more stringent measures on leave authorization passed the House. Advocates of the bill decided to cease legislative activity temporarily, however, because they realized that they still did not have enough votes to override the expected veto. They resumed their activities in 1992 with the hope that they could pressure Bush into signing the bill in order to gain support from working families in the presidential election. But Bush repeated his actions from 1990, vetoing the bill while paying lip service to the importance of family leave. In another written statement, Bush emphasized his support for family leave alongside his belief that the FMLA would hurt the economy. He then suggested that Congress should establish a tax credit for businesses that provided family leave for their employees. [6]During the rest of the 1992 presidential campaign, Bush sought to draw little attention to his vetoes of the FMLA or his stance on family leave, for he knew that his position would not be well received by many voters. In contrast, his opponent Bill Clinton highlighted his support for the FMLA. After Clinton took office in January 1993, the FMLA was the first major piece of legislation that he signed into law.

Once leave was mandated by the government, many believed—or at least hoped—that FMLA coverage would steadily expand to protect a greater number of workers and ultimately to include wage replacement. Yet these hopes have not materialized. Fifteen years passed before the FMLA was amended for the first time, and the changes that have been made to the act have been minor compared to expectations. Amendments added in 2008 and 2009 expanded leave coverage for workers who have a family member in the military. In 2009 the law was amended again to acknowledge that the FMLA has special rules that apply to the way in which eligibility is calculated for airline pilots, flight attendants, and other airline crew members. In 2015 the U.S. Department of Labor revised the definition of “spouse” under the FMLA to ensure that eligible workers in a legal same-sex marriage can take FMLA leave to care for their spouse or family member, regardless of their state of residence.

Over the last two decades, attempts to increase family leave benefits at the national level have largely failed. Because Congress has been reluctant to expand the FMLA or enact a new federal-level paid family leave law, efforts to improve family leave coverage have largely been concentrated at the subnational level. In the American federal system, state lawmakers can legislate social policy not addressed by the federal government and have greater freedom to design policy that is consistent with their state’s dominant political culture. Likewise, municipal governments are able to craft policy to suit the local population.

The greater leeway subnational governments have in the policy-making process has led to considerable variation in family leave policies among states and cities. Prior to the passage of the FMLA, nearly forty states had already adopted some type of family and medical leave law, though there was little uniformity among them. [7] Today some states guarantee no more coverage than the FMLA, while others have expanded unpaid leave to a greater number of workers. Illinois, Ohio, and Virginia provide paid parental leave for state employees. California, New Jersey, and Rhode Island have successfully implemented employee-funded paid leave policies for virtually all workers; beginning in 2018, New York will join this list. The programs function like a public insurance program: a portion of the employees’ taxes are put into the state’s leave fund, which employees can then draw from while on leave from work. For example, New Jersey employees can take six weeks of leave to care for a new child or family member with a serious illness or injury. They recoup 66 percent of their weekly earnings, up to $615 per week, and they contribute at a rate of 0.08 percent. Although Washington State adopted a paid parental leave bill in 2007, the lack of a funding mechanism has delayed implementation indefinitely. At the municipal level, dozens of cities and counties have implemented paid parental leave for government employees. In April 2016 San Francisco made history by adopting the first city-wide paid parental leave law in the United States, which will require employers to bear part of the financial responsibility.

Although there has been significant progress at the subnational level, most family leave advocates also continue to work toward the ultimate goal of a national policy. In 2015 Senator Kirsten Gillibrand (D-NY) and Representative Rosa DeLauro (D-CT) introduced the Family and Medical Insurance Leave (FAMILY) Act, which provides workers 66 percent of their wages (capped at $1,000 per week) for up to twelve weeks for the same reasons covered by the FMLA. It does not include job protection, but eligibility extends to all workers who pay into and are eligible for Social Security benefits for at least one year. Unlike the state-level policies, the FAMILY Act would rely on both employee and employer contributions of 0.2 percent of wages, capped at $4.36 per week. The average worker would contribute $1.38 per week. After being read in the legislature on March 18, 2015, the bill was referred to committee and no further action was taken. At least in the immediate future, a federal paid family leave law is unlikely.

There are a number of reasons that the United States remains the only industrialized country without paid family and medical leave at the national level. One of the most compelling explanations is that business interests generally oppose such government mandates because they fear a loss of profits and lowered ability to compete, even though evidence shows that such concerns are unfounded. [8] Because business is a powerful lobbying group in the United States, its perceived interests are often protected by legislators. Although strong unions can be a formidable opponent for business, rates of unionization in the United States are relatively low, which has greatly diminished the bargaining power of such organizations.

Family leave policies allow women to participate in the labor force more fully, which challenges the traditional gender roles at the center of the male breadwinner model that puts the husband in full-time work outside the home while his wife stays home to care for the family. Men are more likely to take leave when it is paid; therefore, an increase in the availability of paid leave could lead to an increase in men’s usage of leave as well as further role change. [9] For this reason, socially conservative lawmakers often oppose such policies. Moreover, because many conservatives advocate a limited role for the government and believe that family issues are a private matter, they may see mandated family leave as an unnecessary intrusion into people’s lives. Part of so-called “American exceptionalism” is an emphasis on the individual and personal responsibility; this way of thinking helps to fuel opposition to government action on paid family leave. It is therefore not surprising that Republicans are much less likely to support paid leave policies than Democrats. Finally, paid leave suffers from a collective action problem. Because many workers are able to construct some type of leave arrangement based on the FMLA, state or municipal laws, and programs provided by employers, it has been difficult to organize a widespread campaign for the expansion of family leave policies in the United States. That is starting to change, however, as family leave has gained increasing attention in recent years.

In 2015 Barack Obama became the first president to call for paid family leave in the State of the Union address. As the 2016 presidential campaign progresses, paid family leave has emerged as a significant issue. Although it had not been a priority for Democratic nominee Hillary Clinton in the past, she has incorporated paid leave more fully into her platform as the issue has garnered greater support across the country. She has spoken out against the FAMILY Act because it relies on an increase in payroll taxes. Her plan would provide the same benefits as the FAMILY Act, but it would be funded by increased taxes on the wealthy. [10] On the Republican side, nominee Donald Trump has proposed six weeks of paid maternity leave for women whose employers do not currently provide it. The program would extend unemployment benefits to new mothers, and would be funded by eliminating fraud and waste in the Unemployment Insurance (UI) system. [11]

Ultimately, the results of the 2016 presidential and congressional elections will tell us more about paid family leave policies in the short term than in the long term. Even if leaders who are hostile to paid leave take power in 2017, the momentum for the issue will continue to grow as more states, cities, and counties adopt paid leave. Currently, only 13 percent of civilian workers in the United States have access to paid leave through their employer, but new companies are adopting generous leave policies on almost a daily basis. [12] A recent poll of likely 2016 voters found that 79 percent say it is “important for elected officials to update the FMLA to guarantee access to paid family and medical leave.” [13] Politicians will eventually be forced to address the issue as public opinion continues to grow increasingly favorable to it. Ensuring that all workers in the United States have access to the paid family leave that they need will not happen overnight; however, if we continue in the direction we are headed, it will happen.

Notes

[1] World Policy Analysis Center. n.d. “Is Paid Leave Available to Mothers and Fathers of Infants?” Accessed Sept. 1, 2016

[2]Rebecca Ray, Janet C. Gornick, and John Schmitt, “Parental Leave Policies in 21 Countries: Assessing Generosity and Gender Equality,” Center for Economic and Policy Research, 2009; Jody Heymann and Alison Earle, Raising the Global Floor: Dismantling the Myth That We Can’t Afford Good Working Conditions for Everyone (2010).

[3] M. Margaret Conway, David W. Ahern, and Gertrude A. Steuernagel, Women and Public Policy: A Revolution in Progress, 3rd ed. (2005), 186; Janet C. Gornick and Marcia K. Meyers, Families That Work: Policies for Reconciling Parenthood and Employment (2003), 28.

[4] Steven K. Wisensale, Family Leave Policy: The Political Economy of Work and Family in America (2001), 138–43; Ronald D. Elving, Conflict and Compromise: How Congress Makes the Law (1995).

[5] Steven A. Holmes, “Bush Vetoes Bill on Family Leave,” New York Times, June 30, 1990.

[6] Michael Wines,“Bush Vetoes Bill Making Employers Give Family Leave,” New York Times, Sept. 23, 1992.

[7] Women’s Bureau, U.S. Department of Labor, State Maternity/Family Leave Law (1993).

[8] Ruth Milkman and Eileen Appelbaum, Unfinished Business: Paid Family Leave in California and the Future of U.S. Work-Family Policy (2013).

[9] Eileen Appelbaum and Ruth Milkman, “Leaves That Pay: Employer and Worker Experiences with Paid Family Leave in California,” 2011.

[10] Anna Louie Sussman and Laura Meckler, “Clinton Offers New Details about Paid Family Leave Plan,” Wall Street Journal, January 7, 2016.

[11] Matt Fuller, “Donald Trump’s Maternity Leave Proposal Gives Conservatives in Congress Some Pause,” The Huffington Post, Sept. 13, 2016,

[12]National Partnership for Women and Families, “Fact Sheet: The Family and Medical Insurance Leave Act (The FAMILY Act),” 2015.

[13] Debra Ness, “Voters Say It’s Time for Paid Family and Medical Leave,” National Partnership for Women and Families, Feb. 5, 2016.

Author

MEGAN A. SHOLAR is a Lecturer in the Interdisciplinary Honors Program at Loyola University Chicago. She is the author of Getting Paid While Taking Time: The Women’s Movement and the Development of Paid Family Leave Policies in the United States (2016).