Family leave is a policy providing employees a job protected leave from employment during a period of unusually demanding family responsibilities. The main reasons for family leave are the arrival of a new child or the serious illness of a child, spouse, or parent. The intergenerational structure of family leave is particular to the United States. Most other countries have maternity or parental leave policies that are separate from any policies providing leave for the care of an ill spouse or parent. Because the United States is unique in this respect, the discussion below centers on family leave policy in the United States. A more extensive international comparison of parental leave policy is found under the heading “maternity leave.”
Until 1993, the United States was one of the few industrialized countries without national family leave legislation, and the United States still stands out in having particularly minimal support for employees. At the federal level, the 1993 Family Medical Leave Act (FMLA) governs family leave policy. The FMLA requires public employers and private employers with 50 or more workers to offer job-protected family or medical leave of up to 12 weeks for qualifying employees (those who worked at least 1,250 hours for the employer in the previous year) who need to be absent from work as a result of the employee’s own serious illness, the serious illness of a child, spouse, or parents, or the arrival of a new child by birth, adoption, or foster care. The FMLA does not provide paid leave, although it does require employers who provide health insurance to continue coverage during the leave period. The FMLA does not apply to employees who care for in-laws, grandchildren who care for grandparents, or same-sex couples. Because of limitations on who qualifies, the FMLA covers fewer than half of the nation’s private sector employees.
The historical origins of the FMLA lie in a long debate between protectionist policies for mothers and children and equal rights in the workplace for women. Beginning in the 19th century, many states passed protective legislation placing limits on women’s work, excluding them from night shifts and hazardous duties, for example. The rationale for special treatment for women was their reproductive and maternal role. However, in the 1960s, the equal rights movement challenged protective legislation, arguing that it limited women’s role in the workforce. Title VII of the 1964 Civil Rights Act prohibited employment discrimination on the basis of sex, and the 1978 Pregnancy Discrimination Act further established the principle that men and women were to be treated equally when they were unable to work for medical reasons.
By the 1980s, as legislators were beginning to craft federal family leave policy, the course was set toward a policy that would treat men and women workers equally. Democrat Pat Schroeder introduced the first family leave bill in Congress in 1985. The 1985 bill was voted down, as were subsequent bills in 1986 and 1987. In 1990 Congress passed a family leave bill that President George Bush vetoed. As federal initiatives foundered, many state legislatures enacted state level family or parental leave policies, beginning with Connecticut in 1987. By the time President Bill Clinton signed the FMLA into law in 1993, 32 states had adopted state-level leave policies.
After the passage of the FMLA in 1993, the frontier in family leave policy shifted back to the states. California in 2004 was the first state to enact paid family leave. In California, all workers who pay into the system receive benefits of roughly 55 percent of wages while caring for a new child or seriously ill family member. Washington State became the second state to provide paid family leave in 2007, and New Jersey passed a paid family leave measure in 2008.
Leave policies of other nations differ from those of the United States in three major respects. First, the policies of other nations tend to provide longer periods of leave. The average leave provided in OECD nations is 10 months as compared to less than three months in the United States. Second, most countries provide some sort of wage replacement. A Harvard/McGill study of 173 nations found that 169 guarantee paid leave to women in connection with childbirth, and 66 provide paid paternity leave to fathers. Finally, the policies of most other countries apply universally (to all mothers, fathers, or parents) rather than only to employees meeting certain qualifications.
- Carl C. Bosland, A Federal Sector Guide to the Family and Medical Leave Act and Related Litigation (Dewey Publications, 2007);
- Lisa Guerin and Deborah England, The Essential Guide to Family and Medical Leave (Nolo, 2007);
- Heymann et al., The Work, Family, and Equity Index: Where Does the US Measure Up? (Harvard, 2007);
- Tanaka, “Parental Leave and Child Health Across OECD Countries,” The Economic Journal (2005);
- Waldfogel, What Children Need (Harvard, 2006).
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