The United States is one of the only advanced economies without paid family leave available to new parents. Millions of prospective parents find, to their dismay, that they must piece together vacation time and unpaid leave to stay home with their new babies and to recover from childbirth. State-based advocates have been working to pass paid leave policies and have been successful in California, New Jersey, Rhode Island, and New York, leaving a huge gap for parents in other states. President Trump's recent budget proposal lays the groundwork for the first federal paid parental leave plan, but what does it offer?
Under Trump's plan, which currently is just one paragraph in the proposed budget, birth and adoptive parents would have 6 weeks of paid parental leave. States' paid family leave programs generally cover: who gets leave, under what circumstances individuals (not just for new parents) can take leave, the length of leave, the amount of pay, and the employees' rights to return to their job after leave ends. Trump's proposed parental leave plan only covers who will get leave (birth and adoptive parents) and how long the leave is for (6 weeks).
The proposed plan would be funded through the Unemployment Insurance program. The United States Department of Labor oversees the Unemployment Insurance program, but states generally fund the program and vary how much is paid out, hence the state by state differences. Currently, states pay for most of the funding for their state specific unemployment insurance programs, while the federal government pays for the administrative costs.
Trump's plan would require states to maintain sufficient balances in their Unemployment Insurance funds, and states with insufficient balances would be expected to increase their state unemployment taxes, which are paid by employers, to build up their fund balances. The amount of leave time would be set federally at six weeks, but the details of how much pay parents would receive will depend on which state they live in.
The current Unemployment Insurance program is designed to pay part, but not all, of an employee's wages. For example, the maximum weekly benefit amount allowed in Mississippi is $235.00, while the maximum benefit amount in Massachusetts is $742 per week. Because of recent case law, the federal government might not be able to force states to expand their unemployment insurance programs, and some states that are underfunded probably would not expand their programs. In addition, based on the limited information available, it seems this plan would allow mothers, fathers, and adoptive parents to use leave to care for their newborns, but not to care for their own medical conditions.
There are many criticisms of this plan, starting with a commonly held view that six weeks is not enough time to spend with a newborn, and that state unemployment insurance programs are unable to deal with paid leave. Six weeks typically is the amount of time recommended for women recovering from uncomplicated vaginal births, not to care for and bond with newborns. More time is often needed just to recover from C-sections. Moreover, some critics believe that finding childcare for babies who are six weeks old is problematic.
The plan also would not cover time off to care for ill family members, such as existing state-based paid family leave plans. Even under existing federal law, the Family Medical Leave Act, twelve weeks of unpaid leave are available to eligible employees to care for their own medical conditions or to care for their family members. But, not all employees qualify for FMLA. (The FMLA covers employers with 50 or more employees within 75 miles of the employment location. To use FMLA leave, an employee must have been employed by the employer for at least 12 months, and have worked at least 1,250 hours over the past 12 months.)
Once a federal law is passed, it often sets the ceiling for benefits, in all but the most progressive states. The Trump proposal sets a low bar for paid family leave and is less generous than existing state programs. Plus, Trump's budget also proposes severe cuts to existing social welfare programs that benefit mothers and newborns –– including Medicaid and Food Stamps. This attempt to provide paid leave on a national level is a start, but you can still reach out to your Congressional representatives before this budget is enacted to tell them your opinion. Meanwhile, existing state programs are the only public paid leave schemes available to new parents in the United States.
Alex Berke and Rosa Aliberti work at Berke-Weiss Law PLLC. The New York City employment law firm created the Pregnancy Project to inform and empower pregnant women to negotiate effectively for their workplace and health insurance rights. The Pregnancy Project 90-minute seminar, offered at various locations in New York City and online, covers key questions and provides useful tips for addressing questions we frequently see in our practice. Check out our upcoming classes. If you find yourself being discriminated against at work, you can contact Berke-Weiss Law PLLC for a paid consultation.