Maya McLees is a 2L at American University Washington College of Law.

It has long been recognized that the lack of accommodations for working parents—mothers especially—can force them “to choose between job security and parenting.”[1] The Family & Medical Leave Act (FMLA) mandates that eligible employees are entitled to up to 12 weeks of unpaid leave to care for a newborn.[2] Under current law, employees have to have worked for their employer for at least a year and worked an average of more than 25 hours a week.[3] For private companies, these regulations only apply to companies with at least 50 employees.[4]

Those who qualify for this unpaid leave usually end up combining benefits and paid time off to subsidize their maternity leave. Short-term disability plans cover a percentage of an individual’s salary for six weeks.[5] Unfortunately, the majority of the private sector workforce does not have access to short-term disability coverage through their employer.[6] Parents who have accumulated vacation and personal days end up using those days, which can sometimes affect raises and promotions.[7]

Currently, there is no federal law in the United States that provides a right to paid family or medical leave.[8] Only thirteen states have passed paid family and medical leave laws.[9] Many mothers are forced to go back to work well before their twelve weeks are up because they cannot afford to not receive a paycheck. One study found that 23% of women go back to work within ten days of giving birth, demonstrating the bind that unpaid leave puts families in.[10]

Many daycares do not accept infants who are not at least 6 weeks old, so the mothers who go back to work earlier than that must find a trusted relative or friend to take care of the child.[11] Further, daycare itself is expensive.[12] A recent report found that the average weekly daycare cost is $321, which is up 3% from $284 in 2022. [13]

Senator Kristen Gillibrand (D-NY) and Representative Rosa DeLaura (D-CT-03) have revised and introduced the Family and Medical Insurance Leave (FAMILY) Act in the 118th Congress.[14] The FAMILY Act would mandate paid family and medical leave to every worker, regardless of employer size or how many hours were worked in the past year.[15] The bill includes a progressive wage replacement rate for benefits, intended to help lower-income workers “match their level of need.”[16] The bill also incorporates a new definition of “family”- it now includes chosen family (meaning family by blood or affinity).[17] The FAMILY Act was initially introduced in 2013 but never passed the House.[18] The current version of the bill was referred to the House Ways and Means Committee and the Senate Committee on Finance, but no action has been taken on it since. It is unlikely that the bill will be enacted.[19]

Those opposed to paid maternity leave argue that businesses will suffer and possibly be forced to close if paid maternity leave is mandated.[20] However, businesses will also suffer when their employees quit to raise a child and subsequently, the business must spend time and money training a new employee.[21] The United States must consider the long-term consequences of making it difficult for mothers to stay home with their newborns beyond the scope of business operations.

 

[1] U.S. Department of Labor, “The Family and Medical Leave Act of 1993,” § 2. Findings and Purposes, https://www.dol.gov/agencies/whd/laws-and-regulations/laws/fmla.

[2]Family and Medical Leave Act of 1993, H.R. 1, 103rd Cong. § 101 (1993).

[3] Id.

[4] Id.

[5] Haley Longman, “Maternity leave: A guide for expecting moms,” Oct. 3, 2023, https://www.babycenter.com/pregnancy/your-life/maternity-leave-the-basics_449#.

[6] U.S. Bureau of Labor Statistics, “National Compensation Survey: Employee Benefits in the United States, March 2023,” September 2023, https://www.bls.gov/ebs/publications/employee-benefits-in-the-united-states-march-2023.htm.

(stating that 57% of private sector employees do not have access to short-term disabillity coverage).

[7] Supra at 5.

[8] Molly Weston Williamson, “The State of Paid Family and Medical Leave in the U.S. in 2024,” Jan. 17, 2024, https://www.americanprogress.org/article/the-state-of-paid-family-and-medical-leave-in-the-u-s-in-2024/.

[9] Id.

[10] Supra at 5.

[11] Haley Longman, “When can I go back to work after having a baby?” Feb. 15, 2022, https://www.babycenter.com/baby/postpartum-health/when-can-i-go-back-to-work-after-delivery_1156149.

[12] Care.com editorial staff, “This is how much child care costs in 2024,” Jan. 17, 2024, https://www.care.com/c/how-much-does-child-care-cost/.

[13] Id.

[14] Press Release from N.Y. Sen. Kirsten Gillibrand, May 17, 2023 (calling for universal paid leave).

https://www.gillibrand.senate.gov/news/press/release/gillibrand-delauro-introduce-new-and-improved-family-act-in-fight-for-universal-paid-leave/.

[15] FAMILY Act, H.R. 3481, 118th Cong. (2023-2024).

[16] Supra at 8.

[17] Id.

[18] Family and Medical Insurance Leave Act of 2013, H.R.3712, 113th Cong. (2013-2024).

[19] Supra at 11.

[20] Matia Finn-Stevenson and Eileen Trzcinski, “A Response to Arguments against Mandated Parental Leave: Findings from the Connecticut Survey of Parental Leave Policies,” JSTOR Journal of Marriage and Family, Vol. 53, No. 2 (1991).

[21] Id.