Presidential Election: Candidates Back Paid-Leave Proposals

Allen Smith, J.D. By Allen Smith, J.D. September 8, 2020
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Presidential Election: Candidates Back Paid-Leave Proposals

Editor's Note: This article is part of a series reviewing the similarities and differences between the two presidential candidates' positions on workplace issues. Check back each week for a new overview on such topics as labor relationspaid leaveminimum wagehealth care, immigration, retirement assistance and more.

Both presidential candidates support paid-leave proposals—which would be a first of their kind in federal legislation—though the paths each would take to create paid leave differ widely.

The Families First Coronavirus Response Act (FFCRA), passed for this year due to the pandemic, became the first federal law to mandate paid leave in the private sector.

But even before the pandemic, there was some momentum for paid-leave legislation, as President Donald Trump signed into law on Dec. 20, 2019, a measure that makes federal employees eligible for paid parental leave, effective Oct. 1.

In his State of the Union address on Feb. 4, Trump said, "As we support America's moms and dads, I was recently proud to sign the law providing new parents in the federal workforce paid family leave, serving as a model for the rest of the country." He said he also supports proposed legislation, the Advancing Support for Working Families Act, that lets parents borrow money against future earnings to have income while they are off work to care for new children.

Many Democrats, including former Vice President and Democratic presidential nominee Joe Biden, are calling for 12 weeks of paid family and medical leave that is funded differently.

"I see interest in paid leave from both presidential candidates and a growing number of members of Congress—as well as from state legislatures and voters—as a sign that paid leave at the federal level is a question of when and what, not if," said Vicki Shabo, senior fellow of paid-leave policy and strategy with New America in Washington, D.C.

But Republicans may view new employee payroll contributions to help fund the Democrats' proposed paid-leave legislation—the Family and Medical Insurance Leave (FAMILY) Act—as a deal-breaking tax, reported The New York Times.

Employer contributions, which the FAMILY Act also proposes, are controversial as well. "Most employers recognize and support employees' need to take time off for family reasons such as those set forth in the FMLA [Family and Medical Leave Act], and some employers cannot afford to provide wage-replacement benefits when employees take such time off," said Tamara Devitt, an attorney with Haynes Boone in Costa Mesa, Calif. The Society for Human Resource Management believes that the United States must have a 21st century workplace flexibility policy that works for employers and employees alike, helping them meet work/life and organizational needs.

Advancing Support for Working Families Act

Under the Advancing Support for Working Families Act, proposed last year by Sens. Bill Cassidy, R-La., and Kyrsten Sinema, D-Ariz., parents of a newborn or recently adopted child under age 6 could accelerate their child tax credits to receive $5,000 immediately. These funds could be used to replace income while taking leave from work or to pay for child care if parents work outside the home.

"The first year of a child's life is the most expensive," Cassidy said. "This bill achieves our goal of helping working families better provide for their child in the way that best works for their family."

Sinema noted that too often "families are forced to decide between going back to work right away or losing wages by taking time off to spend with their growing families."

Aparna Mathur, writing for the American Enterprise Institute in Washington, D.C., as a resident scholar for economic policy before becoming a senior economist at the White House Council of Economic Advisers, called using the child tax credit to fund family leave a smart idea: "Given the political divide on what constitutes a perfect policy when it comes to constructing a federal paid-leave policy, it makes sense to start with small wins and some compromises."

But Pronita Gupta, director of job quality at the Center for Law and Social Policy in Washington, D.C., said the bill offers a loan to new parents that would have to be repaid over 10 to 15 years through reductions to child tax credits. "This repayment would place a significant burden on parents in low-wage jobs," she said.

Gupta added that the bill does not provide any worker a right to paid leave, meaning workers would risk losing their jobs if they take time off.  

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

FAMILY Act

The FAMILY Act, reintroduced last year by Rep. Rosa DeLauro, D.-Conn., and Sen. Kirsten Gillibrand, D-N.Y., would provide workers with up to 12 weeks of partial income when they take time for:

  • Their own serious health conditions, pregnancy and recovery from childbirth.
  • The serious health condition of a child, parent, spouse or domestic partner.
  • The birth or adoption of a child.
  • Particular military caregiving and leave purposes.

The FAMILY Act would cover workers in all companies, no matter their size. Part-time, lower-wage, contingent and self-employed workers would be eligible for benefits, according to The National Partnership for Women & Families in Washington, D.C.

"In its current form, the legislation would create a paid family and medical leave program that we currently find in states like Washington and Massachusetts," said Jeff Nowak, an attorney with Littler in Chicago. Employers and employees both would make contributions to a fund that would provide some portion of employees' pay if they were unable to work due to their own serious health conditions or because they were required to care for family members in the same situation, he noted.

Biden supports 12 weeks of paid family and medical leave similar to the FAMILY Act but hasn't said he supports every provision of the legislation, Shabo observed. She said the bill's provisions are important because "fewer than 20 percent of workers have dedicated paid family leave and fewer than 40 percent have temporary disability insurance for a personal health issue that takes them out of work. For low-wage workers, part-time workers and workers of color, access rates are even lower."

Employers would have the right to obtain documentation of workers' eligibility for leave under the FAMILY Act, just as they do under the FMLA.

Larry Lorber, an attorney with Seyfarth in Washington, D.C., noted that the legislation would not preempt state paid-leave laws. He said this would "cause a great degree of confusion," given certain differences between the laws and the FAMILY Act.

 

[For more on this year's election, see the SHRM Government Affairs Team's Election Resources.]

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