Time for the FAMILY Act

“Today’s world is a mobile one and families are dispersed. Young men and women often move far away from their homes to find education and work, which of course leaves both the older parents and the growing young families apart…and very much alone and without support when a crisis occurs.” – Joan Lunden, former host of Good Morning America, testifying before the U.S. House Ways & Means Committee, January 28, 2020

“There is broad agreement that the current reality of who gets paid leave and how they access it is not working and that it exacerbates inequality.” – Kemi Role, director of work equity, National Employment Law Project, testifying before the U.S. House Ways & Means Committee, January 28, 2020

Last week, Congress took a step forward on paid family and medical leave when the U.S. House Ways & Means committee heard testimony on legislative proposals that would greatly expand access to paid leave to working people across the United States.

With a little luck and a lot of work, this hearing will lead swiftly to the markup of a proposal called the Family And Medical Insurance Leave (FAMILY) Act (H.R. 1185). The bill would create a national paid family and medical leave program that covers workers who need to take time away from their jobs to care for a new child, a seriously ill or injured loved one, their own health issues, or circumstances related to a loved one’s military service deployment.

As someone who has testified before Congress on this issue four times; spent a decade working at the federal, state, and local levels to enhance paid leave access; and helped lawmakers draft the FAMILY Act, I feel hopeful about the momentum and signs of progress—progress that is long overdue and badly needed to bridge gender, racial, economic, and health disparities in this country.

The Ways & Means hearing followed closely on the heels of several paid leave milestones: a 2019 House Oversight and Reform committee hearing on the FAMILY Act, the granting of paid parental leave benefits to federal employees as part of the 2020 National Defense Authorization Act, and the creation of a bipartisan Senate working group on paid family and medical leave.

At the state level, congressional action builds on the January 2020 implementation of the nation’s fifth statewide paid family and medical leave law (in Washington state). 2019 also saw the passage of new laws in Connecticut and Oregon, as well as the expansion of New Jersey’s program—bringing the total number of states with paid family and medical leave up to eight, plus the District of Columbia. Each of these laws provides workers with a substantial share of their wages during paid family or medical leave; each has improved on the next to promote equity, inclusion, and certainty for workers and businesses alike.

This action is long overdue. Twenty-seven years ago this week, President Bill Clinton signed the Family and Medical Leave Act (FMLA)—the first federal law to recognize that workers get sick, have sick loved ones, have children, and may need time away from work to provide or receive care. But the FMLA offers only job-protected unpaid leave to eligible workers. And although this landmark law has been used more than 200 million times and helped fuel the beginning of a culture change around work and care, it excludes 40 percent of the workforce due to employer size and employee tenure and hours requirements. It also fails to guarantee the financial protections people need when they take time away from work.

FMLA advocates always knew it was the first step, not the last. Business industry opponents fought for—and won—concessions that proved unnecessary and exclusionary, with disproportionate consequences for women, caregivers, lower-wage workers, and people of color. More than a quarter of a century later, America’s families, and especially America’s most vulnerable workers, are still waiting for Congress to adopt a national paid family and medical leave standard.

Some critics of further legislative action still insist that companies will institute new policies on their own, and that we should allow market forces to address the issue. However, data on workers’ access to paid family leave belie this claim.

As of 2019, as I explained to Congress, just 19 percent of workers were offered paid family leave through their jobs. And while access increased from 2014 to 2019 (a five-year period of transformational change in terms of state-level policy and private sector innovation) the primary beneficiaries have been workers in the highest-wage jobs, especially in technology and finance (a 12-percentage point jump in access, from 22 percent to 34 percent). Meanwhile, workers in the lowest-wage jobs have seen only minuscule improvements: a 2 percentage point gain (from 4 percent to 6 percent).

Faced with this data and similar sobering statistics, not a single member of Congress or witness in the Ways & Means committee hearing suggested that market forces alone would fill America’s paid leave gaps. And both Democratic and Republican members agreed that paid leave is a topic on which the committee should find consensus.

I agree. State lawmakers and interest groups have been able to come together to craft strong, inclusive, affordable, and sustainable policies. Congress should, too.

The FAMILY Act is the right approach, and members of Congress should look at the facts, put aside idealized notions of the free market’s ability to support workers’ well-being, and enact it swiftly. First introduced in 2013, the proposal would offer up to 12 weeks of paid leave annually—paid at 66 percent of a workers’ typical wages—for each of the reasons covered in the FMLA.

This would be a portable benefit not tied to a particular employer, meaning everyone who works—traditional employees in businesses of all sizes, as well as “gig” workers—is eligible. It would be funded, as state programs are, by small payroll deductions of less than $4.00 per week each for a typical worker, with the cost split between employers and employees. This means the cost of leave is shared broadly and sustainably—offering certainty and predictability to employers and employees alike.

State lawmakers and interest groups have been able to come together to craft strong, inclusive, affordable, and sustainable policies. Congress should, too.

In fact, the FAMILY Act’s provisions are modest compared to state programs. Key elements of the FAMILY Act should be adjusted to provide higher wage replacement to lower-wage workers, an expanded definition of family members for whom workers can take leave, more inclusive eligibility rules, and stronger employment protections. This would make the federal program more consistent with the evolution of state policies—and more responsive to evidence-based findings on maximizing the ability of lower-wage workers, people of color, LGBTQ people, and people with disabilities and their caregivers to use the earned benefits they’re paying for.

As my Better Life Lab colleague Brigid Schulte and I have written, state paid leave programs, along with data on programs abroad and U.S. private sector policies, have demonstrated paid leave’s potential to boost women’s labor force participation and earnings; men’s involvement in caregiving; and health outcomes for women, children, and people with serious health issues. Paid leave has also been shown to reduce nursing home use, the length of children’s hospital stays, and new parents’ use of public assistance programs.

Furthermore, state programs have shown that any concerns businesses have prior to the implementation of new policies (often related to cost, absenteeism, or misuse) are largely unfounded. In fact, businesses—and especially small businesses—benefit from public paid leave programs, which ease the financial burdens they face when a worker takes leave.

Some in Congress are tempted by anemic half-measures, which Rep. Ann Wagner (R-Mo) and Rep. Elise Stefanik (R-N.Y.) detailed for the committee last week. These proposals—which, notably, none of the committee members or witnesses defended—would force the very same workers presently excluded from paid leave programs to make trade-offs. They would ask parents in need of paid leave to accept either a lifetime of reduced Social Security benefits or a reduced Child Tax Credit payment each year for 10-15 years, in exchange for a loan that coincides with a child’s birth or adoption. And they would do nothing for the tens of millions of people—75 percent of all FMLA leaves—who take leave to care for their own health issues or a loved one.

Investing in universally provided, equitably available paid leave is an investment in a brighter, more compassionate future. For far too long, Americans have been forced to make do with half-hearted half-measures. Now, as the FMLA passes its 27th birthday, it’s time to finally give the country what it deserves: guaranteed access to paid leave for all.