Finally. National Paid leave proposed under FAMILY ACT of 2013

By: Tatiana Sulovska

The United States has a lot of catching up to do.  The twentieth anniversary of the Family and Medical Leave Act[1] (“FMLA”) last year was more a reason for reflection, than for celebration.  While FMLA certainly represented a laudable paradigm shift, we were reminded just how limited the eligibility for the unpaid family leave thus instituted is.[2]  Those who qualify rarely take advantage.[3]  For the average Joe, the option to take a leave is just a pie in the sky, if you are left without any income.[4]  Half of new mothers return to work immediately post partum, because they simply cannot take an unpaid leave.[5]  Yet in the United States political climate, even the idea of taking an uncompensated leave to care for a sick spouse or a parent, or to bond with your newborn, was a near ideological impossibility in the recent past.[6]  President Clinton signed the embattled FMLA in 1993 after two vetoes from his predecessor.[7]  To put things in perspective, very first paid maternity leave law globally was enacted in 19th century Germany.[8]  As of 2011 United States was one of only three countries worldwide without paid leave for new mothers.[9] “Internationally, we stick out like a sore thumb.”[10]

A House bill[11] introduced on December 12, 2013 by Kirsten Gillibrand, a New York senator, and Representative Rosa DeLauro, of Connecticut, may change that.[12]  The Family And Medical Leave Act of 2013[13] (“FAMILY Act”) would provide for a 66% monthly wage replacement,[14] with family medical leave insurance (“FMLI”) benefits starting at $580 up to a maximum of $4,000 monthly.[15]  If approved, FAMILY Act would be more inclusive than the FMLA, as it does not limit coverage by company size.[16]  According to the Department of Labor, 40% of United States workers don’t qualify for the leave under the current federal statute.[17]

The funding for up to sixty days of caregiver leave would come from payroll deductions, with employee and employers contribution set equally at 0.2% of weekly wages for each.[18]  Three states in the nation, Rhode Island, California, and New Jersey, already provide paid family leave funded exclusively by employee payroll taxes.[19]  Effective January 1, 2014, benefits under the Rhode Island wage replacement program are paid out of the state temporary disability fund.[20]  Similar legislation is pending in New York and Massachusetts.[21]

Still, over one third of workers entitled to paid leave under the 2002 California legislation worry about retaliation from employers.[22]  Implementation thus seems to be hampered by employer reluctance to embrace the concept.  Employers provide paid leave voluntarily only to about 12% of United States workers.[23]  Federal initiative seems to be very much required to bring the United States workplace leave policies into the twenty-first century and reconcile them with the demands of modern life.  The New York Times raised concern about the lack of comment on the proposed legislation from the government thus far.[24]  But, the FAMILY Act proposal has also been called a “game-changer” because it would solve the some of the FMLA deficiencies without putting strain on the federal budget.[25]  Hopefully the voting record will reflect the “family values” rhetoric we tend to hear so much during election campaigns.


[1] Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq. (2006).

[2] Seth Nadel, Panel 3: The FMLA 20 Years Later: What Have We Learned and Where Do We Go From Here?, Symposium, Forging a Path: Dissecting Controversial Health Legislation in the Workplace, The LEJer (Nov. 1, 2013), https://thelejer.wordpress.com/2013/11/01/panel-3-the-fmla-20-years-later-what-have-we-learned-and-where-do-we-go-from-here/ (summarizing content of panel speeches).

[3] Id.

[4] “The FMLA covers employees who have worked full time for at least one year at a company with more than 50 employees. A Labor Department survey released in February found that 40 percent of the U.S. workforce is not eligible. And many of those who are, the survey noted, cannot afford to take it.” Brigid Schulte, States Make Moves Toward Paid Family Leave, The Wash. Post.com (last visited Feb. 16, 2014), http://www.washingtonpost.com/local/states-make-moves-toward-paid-family-leave/2013/12/29/568691ee-6297-11e3-a373-0f9f2d1c2b61_story.html.

[5] Id.

[6] Id. (noting “[t]he FMLA took nearly a decade of often bitter debate before it passed Congress and was signed into law in 1993.”).

[7] Paula Span, A Federal Proposal for Paid Family Leave, NY Times.com (December 13, 2013, 4:24 PM),

http://newoldage.blogs.nytimes.com/2013/12/13/a-federal-proposal-for-paid-family-leave/.

[8] Janet Walsh, Failing Its Families at 6, Human Rights Watch.org (February 23, 2011), http://www.hrw.org/en/node/96430/section/6.

[9] Id.

[10] Schulte, supra note 4 (quoting Gayle Goldin, a RI senator).

[11] Family and Medical Insurance Leave Act of 2013, H.R. 3712, 113th Cong. (1st Sess. 2013).

[12] Span, supra note 7.

[13] H.R. 3712.

[14] KJ Dell’Antonia, New Act Proposes National Paid Family Leave Policy, Motherlode, NY Times.com (Dec. 11, 2013, 10:30 PM), http://parenting.blogs.nytimes.com/2013/12/11/new-act-proposes-national-paid-family-leave-policy/. Catherine Saillant, L.A. City Council Backs House Proposal for Federal Paid Family Leave, LA Times.com (Feb. 5, 2014, 2:15 PM), http://www.latimes.com/local/lanow/la-me-ln-los-angeles-backs-paid-family-leave-20140205,0,4670174.story#axzz2tVOciZrH.

[15] H.R. 3712 §5(b)(2).

[16] Span, supra note 7.

[17] Schulte, supra note 4.

[18] Span, supra note 7.

[19] Schulte, supra note 4.

[20] Id., see also H.R. 5889, Jan. Leg. Sess. (RI 2013) (limiting paid leave to 4 weeks per annum).

[21] Schulte, supra note 4.

[22] Saillant, supra note 14.

[23] Schulte, supra note 4.

[24] Span, supra note 7 (observing the lack of Republican co-sponsors and also missing support from AARP).

[25] Dell’Antonia, supra note 14.

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