Dec. 14, 2020
Better Life Lab Deputy Director Haley Swenson, Program Assistant Jahdziah St. Julien and former New America intern, Leah Crowder, assisted with the development of an earlier version of this explainer.
This explainer provides a short primer on private-sector workers' access and use of federal unpaid leave through the Family and Medical Leave Act (FMLA) and an introduction to state paid family and medical leave programs. More detail about the benefits available and funding streams for state paid leave programs can be found in our companion piece: Paid Leave Benefits and Funding in the U.S.
Until the COVID-19 pandemic in 2020, paid leave was too often discussed as a “moms and babies” policy. COVID-19 underscored just how necessary paid medical and family leave is for workers and the loved ones who rely on them for care. It proved the value of state paid family and medical leave programs, which cover a comprehensive range of personal and family medical and care needs. And it demonstrated the massive shortcoming in current U.S. federal policy, the FMLA, which guarantees job-protected unpaid leave to a limited share of the workforce.
The COVID-19 pandemic has laid bare the gaps in U.S. social and economic policies and the vulnerability working people and their families face without access to paid family and medical leave. According to a recent national survey, 61 percent of the U.S. voting public says it would have been "very helpful" to the country to have had a national paid family and medical leave program in place before the COVID-19 pandemic hit the United States; this view extends across gender, age, race, region and ideology. And 70 percent of 2020 voters say that, as part of a COVID-19 economic recovery plan, it is important for the country to guarantee paid family and medical leave to all workers.
Congress enacted limited, temporary paid sick and family leave measures to address COVID-19 related illness and care needs for some workers, but federal lawmakers have yet to enact a permanent national paid family and medical leave policy.
Family and Medical Leave Act
Since 1993, the Family and Medical Leave Act (FMLA) has guaranteed eligible workers up to 12 weeks away from their jobs to care for a seriously ill or injured parent, spouse or child, to address their own serious health issue, or to care for a newborn, newly adopted or newly placed foster child. More than a decade ago, Congress amended the FMLA to cover two types of military caregiving leave: up to 26 weeks to care for a wounded service member by a parent, child, spouse or next of kin and up to 12 weeks for circumstances related to the deployment of a parent, spouse or child.
The FMLA only provides unpaid leave to about 56 percent of the workforce due to exclusions based on business size and worker tenure; many workers’ inability to take leave without pay further limits eligible workers’ access. But even with these barriers, as of the beginning of 2020, the FMLA was estimated to have been used nearly 280 million times in its 27 years.
According to the U.S. Department of Labor’s most recent FMLA usage survey, based on workers' experiences in 2018, about half of all leaves workers take each year are for a serious personal medical issue (51 percent), one-fourth of all leaves are to care for a new child or address pregnancy-related needs (25 percent), one-fifth (19 percent) are to care for a seriously ill, injured or disabled parent, spouse or child or due to the deployment of a servicemember in the family, and 5 percent are to care for a family member not currently covered by the FMLA (for example, a grandparent, grandchild, sibling or other extended family members).
15.3% of the total workforce takes leave for an FMLA-qualifying reason annually. The reasons for leave-taking are distributed among the total workforce as follows:
- 7.6% of all workers take leave for their own serious health issue*
- 3.75% of all workers take leave to take care of a new child
- 3.6% of all workers take leave to take care of an immediate or extended family member or address deployment-related care needs
The share of workers who need FMLA-type leaves far exceeds the share who are actually able to take leave to provide or receive care. In 2018, 6.9 percent of workers said they needed a FMLA-type leave but did not take it. This is a significant increase from 2012, when 4.6 percent of workers reported forgoing a needed leave. In each year, the most common reason people cited for not taking a FMLA-type leave they needed was their inability to afford unpaid leave (66 percent in 2018; 46 percent in 2012).
* Leave for one’s own serious health issue leave requires hospitalization or an incapacity lasting 3 or more days and continuing care by a health provider.
State Paid Family and Medical Leave Programs
To build on the FMLA, nine states plus the District of Columbia (D.C.) have or will soon have paid family and medical leave programs in place, which offer partial wage replacement to workers in businesses of all sizes. Programs in five states – California, New Jersey, New York, Rhode Island – have been used millions of times. The state of Washington and D.C. each implemented new programs - Washington in January 2020 and D.C. in July 2020. As of November 2020, Washington's program had paid more than 72,000 claims - a number far in excess of expectations. D.C. received more than 1,300 claims in its first 40 days.
Massachusetts' program began collecting premiums in 2019 and will begin paying benefits on January 1, 2021 for personal medical needs, military leave and new children; family caregiving benefits will become available on July 1, 2021. Connecticut's new program will begin collecting premiums in 2021 and begin paying benefits in 2022. Oregon and Colorado are also preparing for new programs, which will be fully implemented in 2023 and 2024, respectively.
The COVID-19 pandemic shows the utility of paid leave programs in a crisis. An Urban Institute analysis of California and Rhode Island state paid leave claim data from the first months of the COVID-19 pandemic concludes that these states' programs were able to absorb a surge of new claims, making financial relief available to working families quickly and without unexpected costs on working people or their employers.
State Paid Leave Utilization Rates in Typical Times
Program data from California, New Jersey and Rhode Island – the three states for which comprehensive data is available – show that a small share of workers use state paid leave programs each year, negating any concerns often raised about overuse. As with FMLA, personal medical leave is the most common reason workers use state paid leave programs, followed by leave to care for a new child and leave to care for a loved one with a serious health issue.
State Paid Leave Duration
In California, New Jersey, New York and Rhode Island, paid leave types are separated into two “buckets”: state temporary disability insurance (TDI) for personal medical leave and paid family leave (PFL) for new child and family care. These states’ TDI programs have been in effect for decades. They provide between 26 weeks (New Jersey, New York) and 52 weeks (California) for people who need time away from their jobs to address a serious personal health issue, including pregnancy; workers who use TDI typically use about one-third or less of the time available: between 10 and 16 weeks. PFL programs in these four states complement TDI and offer PFL for between four (Rhode Island), eight (California), 12 (New York and New Jersey).
Washington was the first state to build a new program that went into effect in January 2020. Washington provides 12 weeks for parental leave or family care and 12 weeks for personal medical leave, with an additional 2-4 weeks available to people who have complications related to pregnancy, up to 16 or 18 combined weeks for all purposes in one year.
The District of Columbia also built and implemented a new program, which began providing benefits on July 1, 2020. D.C. 's program provides eight weeks to parents of a newborn, newly adopted or foster child; six weeks to a worker in need of leave to care for an ill or injured family member; and two weeks for a worker in need of leave for their own serious health issue.
Massachusetts' new program, effective January 1, 2021 (personal medical leave, military leave, new child leave) and July 1, 2021 (family caregiving leave) provides workers up to 26 weeks per year, which can be combined across multiple needs. Uses include up to 20 weeks for workers who need to address their own serious health issue, up to 12 weeks for leave to care for a family member or a newborn, newly adopted or newly placed foster child, and up to 26 weeks for leaves related to care needs arising from a loved one's military deployment.
State Paid Leave Family Caregiving Coverage
Each state program recognizes a wide range of family members for whom workers may take leave to provide care and expands substantially on the FMLA’s parent, spouse and child limitations on family caregiving. All include grandparents; all but two include adult children, parents-in-law, grandchildren and siblings. The three newest laws and an expansion to New Jersey's law include people who are related to the worker by blood or affinity (commonly referred to as "chosen family") – a provision of particular importance to LGBTQ people, Black and Latinx families, and people with disabilities and their caregivers.
In sum, state paid family and medical leave programs expand substantially on FMLA by providing pay, additional coverage for caregivers and, in some cases, longer leave durations. State programs, which are run in a sustainable, affordable way, provide strong models as federal lawmakers consider crafting a permanent national paid family and medical leave program.