At the end of September, New York Senator Kirsten Gillibrand announced her Opportunity Plan promoting progressive economic policies for women. The plan includes Gillibrand’s proposed FAMILY Act. The legislation builds upon the 1993 Family Medical Leave Act (FMLA), which allows certain workers—public-sector employees or private-sector ones who have been employed for at least a year—to take unpaid leave for child care or health reasons.
Under Gillibrand’s proposed legislation, all workers—no matter the size of their company, duration of their employment, or number of hours worked in the past year—would be able take up to 12 weeks of paid leave. Modeled after state additions to temporary disability insurance (TDI) programs in California, New Jersey, and Rhode Island, her plan would require 0.2 percent deposits of employee earnings to be matched by employer contributions in a Social Security Administration fund. Workers would then receive up to 66 percent of their earnings when they took family and medical leave. The legislation, which was developed by the National Partnership for Women & Families (NPWF) in collaboration with the Center for American Progress (CAP), originated in a 2009 paper by CAP’s Chief Economist Heather Boushey.
NPWF also developed the legislation that became the FMLA, and has been working on complimenting the law since it was enacted 20 years ago. “We always had in our mind that the FMLA was the first step toward changing our culture, changing our policies, and moving us toward a society where workers would be able to take a paid leave,” says Vicki Shabo, director of Work and Family Programs at NPWF. “We recognized, even back then, that unpaid leave wasn’t going to be a financially sustainable option for a lot of families. And in fact, the number one reason that people who need Family and Medical Leave Act leave, but don't take it, is that they can’t afford it.”
But while the FAMILY Act would do much to address the inadequacies of the FMLA, there are many problems that the law wouldn’t solve. Pregnant workers in particular require further legislation to protect them both while they’re still working and once they’ve taken leave, paid or not. The Pregnancy Discrimination Act of 1978 (PDA) made the most common employer actions against pregnant workers illegal, such as refusal to hire, but the law doesn’t cover other forms of discrimination, like failing to provide accommodations for pregnant workers in strained physical condition.
In fact, when it comes to pregnant, low-wage workers, the FMLA can be used to detrimental effect: Rather than provide accommodations for expectant mothers, employers sometimes force them to take unpaid leave during their pregnancies, leaving the employee without leave time to use once they give birth, according to a recent report from the National Women’s Law Center (NWLC). The Pregnant Workers Fairness Act (PWFA)—developed by the NWLC in partnership with Democratic Congressman Jerrold Nadler, NPWF, and a number of other organizations—would require employers to make accommodations for pregnant workers—similar to those that are currently required for disabled workers under the American Disabilities Act of 1990. The PWFA has been introduced in both the House, by Nadler, and Senate, by Robert Casey Jr., a Pennsylvania Democrat. Gillibrand is a cosponsor of the bill.
There are still other ways in which the current and proposed legislation leaves workers vulnerable. Though it includes an anti-retaliation provision, the FAMILY Act does not require an employer to hold a worker’s job while they take paid leave. And though the FMLA includes a job-protection provision, the law doesn’t cover about 40 percent of American workers in the private sector who have recently started a new job, work part-time, or work for a small employer. According to Shabo, because the FAMILY Act would act as social insurance rather than a labor standard, it isn’t meant to supplant the FMLA. “Ideally, we see FMLA expansion moving on a parallel track, so that we’re also providing greater access to the FMLA for folks,” Shabo says. She did note, however, that Rhode Island became the first state to pass paid insurance leave legislation with a job-protection provision earlier this year—though the law only allows a maximum of four weeks of paid leave.
Gillibrand’s plan to introduce the FAMILY Act comes at a promising time for paid-leave legislation. In addition to recent adoptions of paid insurance leave programs, the push for paid sick days—though distinct from paid family and medical leave—has led to new municipal legislation in Seattle, San Francisco, and, just in the last six months, Portland, Jersey City, and New York City. Connecticut became the first state to enact paid sick-leave legislation in 2011.
“It’s harder to win than you would think, but we’re starting to see momentum,” says Jen Kern, national issues campaign director for Working Families, also noting that “we’ve historically seen the momentum for these kinds of policies happen first at the state level.” Kern is optimistic about the role progressive economic policies will play in the upcoming elections, both on a state and national level. “[Gillibrand and others in Congress] see this as a women’s economic security agenda building toward the 2014 elections, so I think this is all part of that effort, and it’s very timely.”
Though paid sick leave and paid family and medical leave have seen success on the state and municipal level, it will likely take years for the FAMILY Act—which Gillibrand’s office plans to introduce in the Senate later this month—to be enacted. The FMLA was introduced in Congress every year from 1984 until it was finally passed and enacted in 1993. It was passed and vetoed by President George H.W. Bush in both 1991 and 1992. The current obstructionist political climate and the GOP’s record on women-friendly legislation doesn’t bode well for ease of passage either. As recently as April of this year, House Republicans blocked a vote on the Paycheck Fairness Act, which would extend the protections of the Equal Pay Act and the Lilly Ledbetter Fair Pay Act, and is one of the bills Gillibrand supports in her Opportunity Plan. The bill’s 2011 failure to receive a Senate vote after being passed by the House even prompted a statement from Obama to “keep up the fight to pass the reforms in that bill.”
Despite congressional reluctance, recent studies have found strong support for these policies. A June HuffPost/YouGov poll found that 74 percent of Americans support paid sick-leave policies, and a 2012 poll conducted by Lake Research Partners and the Tarrance Group found bipartisan support for paid family- and medical-leave policies, with 73 percent of Republicans and 96 percent of Democrats in support. The goals of the Paycheck Fairness Act are popular as well: a 2010 Lake Research poll found that 72 percent of respondents supported a law to “provide women more tools to get fair pay in the workplace.” The popularity of these policies isn’t surprising to Kern. “Workers and their families are dealing with a 21st century economy but we have mid-20th century workplace standards,” she said. “The world has changed and our workplace policies have not.”