Journal Issue: Work and Family Volume 21 Number 2 Fall 2011
Addressing Gaps in Existing Leave Policies
Current state and federal leave policies in the United States cover some but not all parents and employers, and among those covered, the policies address some but not all of their needs.
For parents, the FMLA provides job protection benefits, which parents may need for unscheduled or extended absences, and it allows up to twelve weeks of leave annually, which likely covers the leave needs for parents of all but the sickest children. It also requires that any group health benefits an employee has be maintained during leave. Moreover, the FMLA does not require advance notice (although it does require justification if notice is not given at least thirty days before taking leave), and leave can be taken intermittently, which creates the flexibility that is crucial for parents of children with special health care needs. The FMLA, however, has two critical weaknesses for parents that clearly suppress use. First, eligibility is essentially restricted to long-term, more-than-half-time employees of public agencies and large private employers, a group that includes fewer than half of all employees.78 Second, the leave is unpaid, which means many parents cannot afford to make use of the benefit.
California designed the PFLI program to extend the FMLA’s provisions in two important ways. First, it greatly expands eligibility, especially to employees in small organizations. Because the PFLI is tied to the state disability insurance provisions, it covers most employees in the state. Two major exceptions are self-employed individuals and employees covered by collective bargaining agreements that waive disability insurance. Second, the program provides pay, albeit partial, during leave (55 percent of salary up to a maximum of $987 a week in 2010).79 Moreover, it retains some of the features of the FMLA, including not requiring advance notice and allowing leave to be taken intermittently.
The PFLI, however, like the FMLA, has provisions that discourage uptake. First, the lack of full pay during leave prevents use for many parents.80 The PFLI is also limited to six weeks rather than the twelve weeks guaranteed by the FMLA. Although it does not require advance notice, it does require one week of missed work (or accrual of seven days if missed intermittently) for an illness during the year before the benefit period can start, which reduces its usefulness for limited absences. It also does not include the FMLA’s job protection provision (although FMLA-eligible employees can simultaneously access job protection under the federal law), which raises the risk of job loss for parents who have frequent and extended absences to tend to their chronically ill children. The PFLI does not require employers to maintain employees’ employer-sponsored health benefits during leave, an especially important consideration for parents of children with special health care needs. Finally, the PFLI has far less stringent employee notification requirements than the FMLA and did not benefit from the same kind of aggressive public education roll-out campaign that the FMLA enjoyed. The FMLA was accompanied by a two-year Department of Labor publicity campaign and strong mandatory requirements for dissemination of FMLA information in workplaces. The PFLI was not widely publicized and requires only that employers provide information to new employees and employees who inquire about pay during their leave for a covered purpose. As a result, many employees must either know about the PFLI before requesting it or request it before knowing that they could receive pay. Given these structural limitations and weak dissemination requirements, it is not surprising that awareness of the program among parents of chronically ill children has been low (18 percent about eighteen months after implementation), and use has been almost nonexistent (5 percent).81 Awareness was only slightly higher for the general California population: 28 percent were aware of the program in 2007.82
Despite these limitations, PFLI sets an important and innovative precedent. By using an insurance model to create a benefit funded entirely by employee contributions, the PFLI simultaneously attempts to avoid social stigma associated with welfare benefits and to address one of the key cost concerns of employers—providing pay during leave. It also raises the possibility that, just as employees’ contributions to an insurance fund could provide parents with some measure of financial protection in the event of child health-related absences, employer contributions (or even additional employee contributions) to a similar fund could protect employers from other costs of parent absences (such as the cost of a temporary replacement).
What Might a National Paid Family Leave Policy Look Like?
The elements of the FMLA and PFLI that are most useful to parents, as well as innovations designed to protect employers, could be combined to create an outline for a national policy aimed at addressing the needs of both parents and employers. The FMLA has some clear advantages for parents, including job and health insurance protection, twelve-week duration, no advance notice requirement, no waiting period, and the ability to be used intermittently. The PFLI adds much broader coverage and pay. Bringing these strengths together would likely address many parents’ most pressing needs across all types of absences, from scheduled limited absences to unscheduled extended ones (although partial pay will remain a disincentive for some). Parents of chronically ill children who are at highest risk of job loss and severe financial consequences could have access to benefits that might protect them from being forced to permanently leave the workforce.
On the employer side, the enhanced benefit would likely need to be balanced by both antifraud protections and financial protections against the costs of employee absences. Strong reporting and illness verification requirements coupled with the ability for employers to require employees to first use other employer-provided benefits such as paid vacation could provide some protection against abuse. With respect to costs of the absence itself, PFLI benefits in California are entirely funded by employee contributions, with employers absorbing other costs, and a recent study documented little hardship for employers.83 Thus, some type of cost-sharing between employees and employers would seem reasonable in a national policy framework.
Ultimately, the reasons to implement a national policy reflect multiple perspectives. First, mothers and fathers nationwide might receive a measure of security that could help them to participate more fully in the workforce while also engaging in the care of their children, regardless of their children’s health or illness. Second, employers might have fewer disincentives against promoting family-friendly workplace policies, and a strong uniform policy might reduce employer concerns of competitive disadvantage created by an unlevel playing field. Third, the child health care system, operating in conjunction with a standardized system of benefits, might be able to more easily understand and cope with the limitations of the parental shadow system of care upon which it depends. Finally, nearly all children—even those not chronically ill—would surely benefit from having greater parental presence protecting and supporting them in times of need.