COVID-19-related federal paid-leave benefits are no longer available to workers, but Congress may consider a bill that would create a permanent paid family and medical leave program.
Rep. Rosa DeLauro, D-Conn., and Sen. Kirsten Gillibrand, D-N.Y., recently reintroduced the Family and Medical Insurance Leave (FAMILY) Act, which would provide workers with up to 12 weeks of paid leave to care for their own health condition or that of a relative, or to bond with a child following birth or adoption. The bill would also cover leave for certain reasons related to military deployment.
"For more than a year, we have simultaneously been struggling to combat a public health emergency and an economic one," DeLauro said. "Women and communities of color have been disproportionately impacted by this crisis, often forced to make the impossible decision between caring for themselves or their families and earning a paycheck."
The FAMILY Act has been introduced each legislative session since 2013 but has failed to pass. Some lawmakers are concerned about how the act would be funded. For example, Rep. Kevin Brady, R-Texas, has supported paid-family-leave legislation, but he raised concerns that the FAMILY Act would be funded through "a huge tax hike that American workers who are living paycheck to paycheck can't afford."
Expanded Eligibility
Currently, the Family and Medical Leave Act (FMLA) offers job-protected unpaid leave to certain employees who work for businesses with at least 50 employees.
Employees are eligible to take leave if they work at a location where there are 50 or more employees within 75 miles, have worked for their employer for at least 12 months and have worked at least 1,250 hours in the previous 12 months.
Workers could take leave under the FAMILY Act for the same reasons they can take FMLA leave under existing law, explained Adam Sencenbaugh, an attorney with Haynes and Boone in Austin and San Antonio, Texas. "But the class of eligible employees is significantly larger than under the FMLA, including every individual who has the earnings and work history necessary to qualify for Social Security Disability Insurance."
The FAMILY Act would cover all workers—regardless of employer size—and would apply to part-time, temporary and self-employed workers. Eligible workers would earn 66 percent of their monthly wages up to a certain cap.
"The FAMILY Act does not require employers to pay for paid time off directly," noted James Hermon, an attorney with Dykema in Detroit. The proposed legislation would set up a new federal insurance program that would be run through the Social Security Administration and create the Office of Paid Family and Medical Leave, which would process employer contributions, administer the leave fund and make benefit determinations.
Employers would be required to contribute to an insurance fund for each employee to cover the cost of paid family leave, and the program would be funded through a 0.2 percent payroll tax.
What's Next?
Although the FAMILY Act seems likely to receive favorable treatment in the U.S. House of Representatives, Sencenbaugh noted, the bill faces an uncertain future in the U.S. Senate. The Senate is split 50-50 between Democrats and Republicans, and Vice President Kamala Harris casts the tie-breaking vote when the Senate is divided.
The bill would need 60 Senate votes to break a filibuster, Hermon observed, which may be hard to come by. "That doesn't mean that some sort of paid leave may not be passed during this administration, but a bill starting a large new social insurance program is going to be tough to get passed," he said.
In prior years, Congress considered several Republican-backed bills, in addition to the Democrat-backed FAMILY Act. Rep. Ann Wagner, R-Mo., co-sponsored the New Parents Act, which would allow parents to use a portion of their Social Security benefits after the birth or adoption of a child. Rep. Elise Stefanik, R-N.Y., co-sponsored the Advancing Support for Working Families Act, which would allow families to take up to a $5,000 advance of the child tax credit in the first year following birth or adoption.
Absent federal legislation, Sencenbaugh said, the trend to offer paid family leave will likely continue at the state and local level.
The Society for Human Resource Management advocates for a voluntary, federal framework for paid leave rather than a fragmented patchwork of state and local laws.
California was the first state to pass a paid-family-leave program in 2002. Additionally, workers in Colorado, Connecticut, Massachusetts, New Jersey, New York, Rhode Island, Oregon, Washington and Washington, D.C., either have or soon will have access to paid-family-leave benefits.
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