Last month, long overdue legislation was enacted that will provide over two million federal workers with paid parental leave. Starting in October 2020, the new law, signed by President Trump in mid-December as part of the National Defense Authorization Act of 2020, will provide up to 12 weeks of paid leave to mothers and fathers of newborns, newly adopted children, or foster children. The cost of the program will be covered by existing agency budgets.
Soon after passage, officials realized the language of the bill did not cover all federal employees. Among those excluded from the new benefit are District of Columbia non-judicial court employees and public defenders, and bankruptcy and magistrate judges. Within days, Senator Schumer (D-NY) introduced S. 3104, the Federal Employees Parental Leave Technical Clarification Act, to correct these deficiencies, but it is not clear at this time how long it will be before Congress acts on it.
The new law, based on legislation introduced by Representative Carolyn Maloney (D-NY), represents the first statutory update to federal family leave policy since passage of the Family and Medical Leave Act (FMLA) over 25 years ago. The FMLA provides significant workplace protections by guaranteeing employees who have worked a required number of hours for eligible employers 12 weeks of unpaid, job-protected leave per year for specified medical and family reasons and no interruption in their workplace health insurance coverage. However, only about 60 percent of the workforce is eligible for FMLA leave, and many of those who are eligible cannot take afford to take advantage of the benefit because the leave is unpaid.
Representative Maloney, who first introduced legislation to provide paid family leave for federal workers two decades ago, has not lost sight of the goal of enacting broad federal legislation that would require employers across the country to offer paid family and medical leave.
Noting that the United States is one of only two nations in the world that does not provide any form of paid leave, Rep. Maloney presided over a hearing in December that focused on the Family and Medical Leave Insurance Act (S. 463, Gillibrand, D-NY, and H.R. 1185, DeLauro, D-CT). The legislation would provide workers with 66% of their wages for up to 12 weeks per year for parental leave as well as for their own serious health condition or that of a parent, spouse, domestic partner, or child. Employees and employers would fund the system through a new payroll tax that would be administered by a new office in the Social Security Administration.
Republicans have expressed support for an approach that doesn't impose additional taxes on employers. One bill that has garnered some attention is the New Parents Act, introduced as S. 920 (Rubio, R-FL) and H.R. 1940 (Wagner, R-MO). Upon introduction, Senator Rubio explained that the bill "would provide a voluntary option for paid family leave” by allowing employees “to pull forward from their future Social Security benefits. No new taxes. No new mandates. No new regulations. Completely optional.” On Tuesday, January 28, the House Ways and Means Committee held a hearing to discuss these and other legislative proposals for paid family and medical leave.
Some states have shown a greater willingness than Congress to guarantee workers paid family, medical and sick leave. Over the past few years, eight states and the District of Columbia have enacted or strengthened their paid family and medical leave laws. The recently enacted District of Columbia paid leave law goes into effect July 1, 2020, and will provide eligible employees with up to eight weeks of employer-funded time off to bond with a new child or to care for themselves or a family member with a serious health condition. Other states, such as Connecticut, Massachusetts, and Oregon also have recently enacted similar laws that will be phased in over the next three years and will either be funded jointly by the employee and employer or solely by the employee.
The ABA adopted policy in 1988 supporting unpaid job-protected family and medical leave. In 2018, the ABA adopted additional policy urging all levels of government to enact legislation to provide all employees with job guaranteed paid sick days and family and medical leave. The policy does not address how to fund these programs.