February 5 is the thirtieth anniversary of the passage of the Family and Medical Leave Act, the federal law that provides job-protected leave to millions of workers in the United States.
The National Partnership for Women and Families estimates that the FMLA has been used more than 463 million times in its three decade existence, and 15 million people take some form of leave under FMLA every year—to care for their own medical needs, the medical needs of a family member, or to welcome a new child.
“Women have been expected to take on [caregiving] and handle it without complaint and largely without support,” says Jocelyn Frye, president of the National Partnership. “The Family and Medical Leave Act rejected the premise that it’s a woman’s lot in life to do that work. Instead, what the FMLA said is that all workers have some sort of care need, and we need to be able to ensure that those folks can take time off and come back to their jobs.”
Critical to this law is that it affords family leave to all genders, making caregiving a workplace issue, not just a domestic one. But, Frye says, “we still have work to do, because the leave is unpaid.”
The limits of the FMLA
Because FMLA does not provide wage replacement for workers on leave, many can’t afford to use it. According to the U.S. Department of Labor, “low-wage employees report needing but not taking leave for a qualifying FMLA reason more often than other employees.” In fact, the National Partnership estimates that seven million qualifying workers cannot afford to take leave under FMLA because it is unpaid.
Further, not everyone is covered by the FMLA. People who work for small businesses, or even some large ones with distributed workforces, people who are contractors, who work part-time, or who are self-employed do not have job-protected leave under federal law.
Only 56% of adults in the U.S. who are not self-employed are eligible for FMLA, according to the Department of Labor. “Workers of color are far more likely not to be covered,” says Frye. “Almost 50% of Latinx workers, 47% of [Asian and Pacific Islander] workers, 43% of Black workers,” do not qualify.
And despite its gender neutrality, the FMLA cannot change the way caregiving duties are distributed. Women remain the primary caregivers in the United States, so even though more men qualify for FMLA, women use it more frequently. Women also report unmet needs for leave at higher rates than men, according to the DOL.
Family leave laws “end up being gendered even though they’re not specked-out to be gendered from a policy standpoint,” says Elena Patel, an assistant professor of finance at the University of Utah’s business school. “If there’s nothing in there that’s motivating a societal change in who tends to do these things, it’s always going to be that women are more likely to take these policies,” says Patel.
The future of family leave
Activists and some lawmakers have now set their sights on winning paid leave, and the fight has plenty of fuel. Thirteen states plus D.C. have instituted some form of paid family leave, and more states are being added to this list. For example, Colorado voters approved FAMLI, a social insurance program that will take effect in 2024.
In some cases, these state laws help cover gaps left by FMLA, but the patchwork still leaves many workers vulnerable, like those who might be afforded paid leave, but no job protection. This is why many advocacy groups are pressing for a federal program. A bipartisan team in the House, led by Republican Stephanie I. Bice and Democrat Chrissy Houlahan, will convene for the first time on February 7, hoping to push a paid leave program through.
There is public support for paid family leave. According to a 2017 survey by Pew Research, 82% of Americans believe mothers should receive paid parental leave, and 69% say fathers should receive the same. Additionally, 67% believe workers should be afforded paid leave to care for a family member with a serious health condition.
To compete for workers, large U.S. employers are increasingly offering paid caregiver leave. American Express, Etsy, Netflix, and S&P Global, for instance, all offer at least 20 weeks fully paid parental leave, and companies like Deloitte and Bristol Myers Squibb offer fully paid family leave, which can be used not just for new children, but also for eldercare, or to care for a spouse. During the pandemic lockdowns, it became clear that it was women who needed paid time away most of all.
Paid leave costs money, of course, and lawmakers contentiously debate over who should pay. According to Pew’s survey, respondents favor employers to foot the bill, followed by the federal government, then state governments. In partnership with the Hamilton Project at the Brookings Institution, Patel and her colleague Tanya Byker, who teaches economics at Middlebury College, have written a policy proposal for partially paid federal leave, funded by a payroll tax split between employers and employees.
At this anniversary, advocates for women in the workplace are pausing to reflect on FMLA’s effects, then quickly pushing forward. “We are incredibly grateful for the progress that has been spurred by the FMLA,” says Frye. “We are excited about celebrating the FMLA, but it’s also a moment to talk about . . . the things that we need to do going forward.”
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