Parental Leave Laws: Overview

Introduction

In the 2020s the United States remains one of the few countries in the world that does not have mandatory paid parental leave for either mothers or fathers. The primary federal regulation governing parental leave is the Family and Medical Leave Act (FMLA), originally passed in 1993 and revised in 2009. This law requires certain employers to provide twelve weeks of unpaid, job-protected parental leave for each parent but does not require that the company pay the employee while he or she is out on leave. However, there are a number of restrictions on this law, and a significant number of US workers are exempt from its protection.

Supporters of parental leave laws cite benefits such as improved childhood development and bonding, better work-life balance for workers, decreased maternal depression and anxiety, and higher rates of breastfeeding. Some also express concerns regarding socioeconomic inequality, as unpaid leave remains elusive even for many who qualify. Meanwhile, opponents generally point to the addition burden on already strained businesses and the long-term effects on the US economy.

Understanding the Discussion

Disability insurance: An insurance policy offered through employers (and sometimes paid for by employers) that pays employees a portion of their wages while they are out of work for medical reasons. Some women can receive a portion of their wages under such a policy while they are out of work immediately following childbirth.

Family & Medical Leave Act (FMLA): Legislation, passed in 1993 and revised in 2009, covers a variety of situations in which a worker might need to take time off to care for a new baby or sick family member. It also covers situations in which the worker is ill. For parental leave purposes, the FMLA requires certain employers to provide twelve weeks of unpaid leave for each parent.

Maternity leave: Refers specifically to the time a new mother can take off from work following the birth or placement of a new child. Paid maternity leave is more common than paid paternity leave, but this usually only applies to situations where the woman has actually given birth to a child.

Paid leave: The time off granted to a new parent during which he or she receives all or part of his or her income.

Parental leave: The general term for any time off from work, either paid or unpaid, granted to a new parent regardless of gender. This may include the birth of a biological child, the adoption of a child, or the placement of a foster child in a new foster parent’s home.

Paternity leave: Refers specifically to the time a new father can take off from work following the birth or placement of a new child.

Unpaid leave: The time off granted to a new parent during which he or she is not being paid, but during which his or her job will be held for his or her return.

History

Prior to the passage of the Federal Family and Medical Leave Act (FMLA) in 1993, US employers were not required to provide any leave time beyond vacation or sick time accumulated by the employee for the birth or adoption of a child. Under certain circumstances, someone giving birth could be covered by short-term disability leave and/or insurance, due to the physical recovery time required following childbirth. However, women often faced discrimination in the workplace if they wanted to take time off following the birth of their child beyond that which was medically necessary. Prior to the FMLA, it was quite uncommon for men to take more than a few days off following the birth of their child.

The Family and Medical Leave Act, passed in 1993 and revised in 2009, addressed some of these issues. It requires certain employers to provide twelve weeks of unpaid parental leave for each parent but does not require that the company pay the employee while he or she is out on leave. However, there are a number of restrictions on this law, and by 2020, 56 percent of US workers were eligible for parental leave under the FMLA, according to data from the US Bureau of Labor Statistics.

First, the FMLA only applies to employees who work at a location where fifty or more employees work, either at that location or within seventy-five miles of it. This automatically exempts any company with fewer than fifty employees. Additionally, the employee must have worked for the company for twelve months and have worked at least 1,250 hours during the twelve months prior to the start of leave. This further exempts part-time employees. It also means that a worker could start a new job before becoming aware of the pregnancy and then be ineligible for leave at the new company, even if the person would have qualified at the old one.

Some states enacted laws that provide more benefits than required under the FMLA. In 2002, California became the first state to require certain companies to provide paid leave for new parents by passing the California Paid Family Leave Act (PFLA), which took effect in 2004. Anyone who paid into the state disability insurance program could receive up to 55 percent of their weekly wages (subject to a cap) for six weeks, and there was no company size restriction. Other states followed suit, offering similar programs but with varying lengths of leave and pay formulas. Additionally, some states permit women to access temporary disability insurance to receive benefits for childbirth-related medical necessity.

The issue of parental leave returned to national prominence in the 2010s. In 2013 Senator Kirsten Gillibrand introduced the Family Act, a bill that would pay two-thirds of a worker’s wages while on FMLA through a payroll tax; although the measure failed to pass Congress, Gillibrand and other Democratic politicians reintroduced it in subsequent sessions. Two years later, President Barack Obama issued an executive order granting federal employees six weeks’ paid leave for a new child or an illness. Subsequent legislation passed in 2019, under Republican president Donald Trump, extended that covered period up to twelve weeks. That same year, Senate Republicans put forth their own paid parental leave proposals, which would be tax-neutral but require recipients to repay their benefits either by postponing entitlement payments in retirement or receiving lower tax credits during early parenthood. Democratic and Republican proposals differed not only on the funding mechanism but also eligibility, with Democrats favoring sick leave coverage as well and Republicans limiting their various plans to new parents or just new mothers following childbirth.

Parental leave also gained traction in the private sector. In 2015, Netflix announced that it would offer one-year paid leave to both mothers and fathers after a child’s birth or adoption. Other large companies, including Johnson and Johnson, Adobe, Google, Microsoft, Yahoo, and Facebook, followed suit with lengthy paid leave policies. However, Netflix’s program was not extended to all its employees but rather to a group defined as “talent,” those who were highly educated and in high demand as employees. Many observers saw such moves as competitive maneuvers to attract and keep talent, while others like Josh Levs of Time noted that having a stated benefit did not ensure a corporate culture conducive to employees, and especially new fathers, making use of it or utilizing it to the fullest.

Overall, the share of employers offering paid maternity leave to their employees grew substantially throughout the 2010s: it rose from 14 percent of companies surveyed by the Society for Human Resource Management (SHRM) in 2009, following the global recession, to 53 percent in 2020. However, after COVID-19 pandemic, businesses scaled back their paid parental leave offerings dramatically. SHRM found 35 percent provided paid maternity leave by 2023.

Parental Leave Laws Today

The United States remains one of the few countries in the world and the only industrialized country that lacks mandatory paid parental leave. In 2022, the United States still ranked last among the highly developed countries in the Organization for Economic Cooperation and Development (OECD) for parental aid provision and protected leave. The Bureau of Labor Statistics reported that although 90 percent of civilian workers in the US ostensibly had access to unpaid family leave in 2023, 27 percent had access to paid family leave.

By 2022, eleven states and Washington, DC, instituted their own paid family leave insurance programs, according to the National Conference of State Legislatures. These programs collect payments through a payroll tax and then distribute funds to qualifying applicants as the need arises. By then, more than four in five American families were considered “nontraditional” and often relied on domestic partners or chosen family, rather than families of origin or a legally recognized spouse, for caregiving support, according to the Center for American Progress. Some states consequently broadened their official definitions of family, enabling LGBTQ people to take paid family leave to care for a chosen family member, and similar legislation was also proposed at the federal level in the early 2020s.

The FMLA significantly improved the situation for working parents, but many people argue that more changes are needed. In particular, many people believe the law should apply to more companies (not just those with fifty or more employees) and should require at least some amount of time of paid leave. The majority of lower-income workers and single-parent families simply cannot afford to take unpaid leave even when it is ostensibly available to them. While some decry this unequal access to parental leave as blatantly unfair and unjust, others point to the financial strain mandatory paid family and parental leave will place on American businesses. Similarly divisive is the question of whether or not the government should pay for parental or family leave.

These essays and any opinions, information or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

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