WMN ST 492w Capstone Paper

Running head: FAILURE TO LEAVE 1
Failure to Leave: A Look at Family Leave Policy and Its Implications in the United States
Bridgette Boody
Pennsylvania State University

ABSTRACT
It took decades for the United States to attempt to implement family leave. Led by the
evolution of maternity leave policy from its roots in the feminization of the workforce, family
leave policy in the United States was codified on a federal level in the Family and Medical Leave
Act of 1993 (FMLA). It was intended to allow workers to care for family members with serious
health problems and for expectant parents to care for newborns without losing their jobs;
however, it continues fails a significant portion of the workforce due to issues of eligibility, lack
of pay, and enactment of the law. Similarly, although FMLA was hailed as a victory for
feminism and a mark of gender equality in the United States, this label does not hold up to
critical feminist analysis. There are some state paid leave policies in place that partially remedy
some of the issues with FMLA, but they too have their own issues of eligibility, coverage, and
payment. In this paper, I will examine the history, sociopolitical context, and feminist analysis of
family leave policies, focusing on the Family and Medical Leave Act of 1993 in the United
States. I will also explore the history and evaluate current state family leave policies in place.
This paper begins with an overview of family leave policy in the U.S relative to the rest of the
globe, continuing with the history behind the federal Family and Medical Leave Act of 1993, the
resultant feminist analysis of it and its shortcomings, and current progress on paid family leave
and its shortcomings, before addressing where paid U.S paid family leave appears to be heading.
It concludes with an exploration of why family leave is a critical issue with implications beyond
the domestic sphere.
It is necessary to clarify that family leave can be used to refer to policies aimed at
maternity leave and the childcare duties of women; however, in this paper, I will differentiate
between maternity leave as separate from family leave. The latter constitutes a much broader
term and addresses both maternity and paternity leave, as well as extended leaves for workers
wishing to care for sick or in need family members. Because of the universality of maternity
leave over all other forms of family leave, there will be an added emphasis on it in many of the
policies discussed.
In looking at the evolution of family leave policy, I will start with the introduction of the
need for the maternity leave beginning with the introduction of more women into the workforce
after World War II. The roots of family leave laws, and subsequent formal family leave policy,
took hold with the Equal Opportunity Commission and Pregnancy Discrimination Act of 1978.
Federal enactment of protections for workers wishing to take time off from their jobs to care for
new or sick family members arrived with 1993’s Family and Medical Leave Act. But as I will
outline, the law failed to yield any meaningful change for gender norms, and it continues to
expose a large portion of the workforce. Feminist analyses of the law, using Marxist, liberal, and
social construction lenses have been deeply critical, and it is clear that there must be some sort of
change to achieve a more feminist social policy. Attempts to rectify the problems with FMLA
and to integrate paid leave into formal law are happening at the state levels; it is there that the
movement to implement paid family leave across the United States shows the most promise.
OVERVIEW OF U.S FAMILY LEAVE IN RELATION TO GLOBAL POLICIES
It has often been remarked that the United States lags behind other nations when it comes
to paid leave for families. In the U.S, federal policy on the matter is a relatively new issue
because family leave policy was nonexistent before 1993-- “before FMLA passed, the United
States was the only industrialized nation in the world that did not guarantee job-protected
parental or family leave.” (Fine, 2006). In comparison to the family leave policies around the
world, the U.S and its FMLA stand out for being wholly inadequate. For such a competitive
economy, the U.S fails to measure up with its peers. As Melissa Etehad and Jeremy C.F. Lin
write for The Washington Post, it turns out that “in the United States, bearing a child comes at a
high price for many women. Despite having one of the world's most advanced economies, the
United States lags far behind other countries in its policies for expectant mothers. In addition to
being the only highly competitive country where mothers are not guaranteed paid leave, it sits in
stark contrast to countries such as Cuba and Mongolia that offer expectant mothers one year or
more of paid leave.” (2016). An interesting comparison, then, can be made between the
maternity leave policies of Russia and the United States. Many of Russia’s values are seen as
antithetical to those of the United States, particularly in the current political climate, yet Russia
offers its new mothers 140 days (over four months) of paid maternity leave at the full salary of
the mother, in stark contrast to the nonexistent paid leave for U.S mothers. (Etehad & Lin, 2016).
The Pew Research Center echoes much of these findings, finding that in a study of 41
countries spanning from New Zealand to Croatia, the United States was the only nation without
paid family leave. Although many of these paid family leave policies applied strictly to new
mothers, these policies also covered adoptive mothers. For these women, this may be of
particular significance for the 40% of households with children where mothers are the primary
breadwinners. Furthermore, twenty-two of the nations in the study had laws that also covered
paid family leave for fathers of biological and adopted children or parental leave, to be taken
after maternity or paternity leave. This is particularly important when considering guidelines
from the International Labor Organization, who recommend that new mothers be able to take at
least fourteen weeks of paid maternal leave (Gault, Hartmann, Hegewich, Milli, & Reichlin,
2014).
Beyond the paid aspect of family leave around the globe, the U.S’s laws still fail in
encouraging workers to take off for family care because of the structure of the law. Although the
U.S’s federal family leave policy extends beyond just maternity leave and allows for leave for
new fathers and for workers to care for sick family members, the maximum leave that one can
take is twelve weeks. None of that time is compensated with any income to supplement daily
living expenses. A 2012 Department of Labor study highlighted this gap, revealing that only “23
percent of women who had left work to care for an infant took less than two weeks off,
increasing health risks for both mothers and children.” (Etehad & Lin, 2016). This means that
even though the U.S has family leave, because of the lack of pay, many women are forced to go
back to work earlier than FMLA offers, if they take any time off at all.
OVERVIEW OF PAID FAMILY LEAVE IN THE UNITED STATES
As noted, the United States has historically lagged behind the rest of the world regarding
time off for workers to tend to family needs. The first federal mention of the idea of maternity
leave appeared in 1963 with the President’s Commission on the Status of Women. The report
recommended that “paid maternity leave or comparable insurance benefits” should be provided
to female workers and employees (Gault, Hartmann, Hegewisch, Milli, & Reichlin, 2014). Prior
to its findings, women were forced to resign if they became pregnant while holding down a job.
This norm began to shift with the advent of the 1970s and several government mandates. As
more women entered the workforce, there was a push rooted in the Civil Rights movement to
eliminate discrimination on the basis of sex, and a standard practice regarding policy for
pregnancy and maternity leave needed to be established for working women moving forward
(Kelly & Dobbin, 1999).

To eliminate discrimination against pregnant women in the workforce, the Equal
Employment Opportunity Commission began to require that “employers who allowed leaves for
disabling medical leaves must allow them for maternity (Kelly & Dobbin, 1999). This was later
formally passed into law by Congress in 1978 as the Pregnancy Discrimination Act, which also
prohibited employers from discriminating or treating employees unfairly on the basis of any
condition related to pregnancy and childbirth (Gault, et al., 2014).
Additionally, states such as California “went a step further,” requiring that all employers
allow job-guaranteed maternity leaves, regardless of disability policies (Kelly & Dobbin, 1999).
These leaves were not necessarily paid, although the Federal Unemployment Tax Act of 1946
allowed states to fund disability benefits through surplus funds from their unemployment
insurance programs. Consequentially, employers who offered paid disability leave were required
to provide the same compensation for on maternity leave under the Pregnancy Discrimination
Act.
It is important to note, however, that “because programs cover only the medical
conditions of pregnancy and childbirth… fathers and adoptive parents do not have access to paid
leave through TDI [Temporary Disability Insurance] to care for or bond with a new child,”
effectively excluding them from the conversation about childcare and early parenting (Gault et.
al, 2014). As a result, early maternity leave policies through disability leaves were intended to
protect women and their families as they entered the workforce in higher numbers, but these
same policies failed to extend these protections to men or working couples who sought out
adoption. Furthermore, using Temporary Disability Insurance as a means to cover pregnancy as a
disability Others pregnancy and a natural female experience in such a way as to diminish the
needs of people with legitimate disabilities. If women are considered to have a disability for a
temporary state of being, there creates confusion as to what more serious disabilities look like
and also usurps valuable funding that workers with disabilities may rely on.
HISTORICAL CONTEXT OF THE INTRODUCTION OF FMLA
The existing family leave policies for American workers that utilized temporary disability
insurance existed for the purpose of addressing pregnancy and maternity leave on a state-by-state
basis. As more women began to enter the workforce after World War II, there became a greater
need for addressing family leave on a national scale. More women entered the workforce as the
result of a variety of reasons: “delayed marriage and childbirth, a decline in fertility, increases in
the divorce rate, an increase in birth among single women, the influence of feminism, and
economic hardships” all factored into greater numbers of women beginning to work outside the
home (Marks, 1997). At the advent of the 1980s, the majority of American families were two-
earner couples working outside the home.” (Marks, 1997). Then, with the conclusion of the
Cold War in the late 1980s and early 1990s, there became a greater focus on non-military and
defense spending. Its conclusion “shifted attention… to domestic issues that favored female
candidates as women office holders and office seekers [more] associated with education, health,
children, and family issues more.” (Fine, 2006).
Because of this, “it was not until 1985 that Congress first considered the family leave
issue.” (Marks, 1997). Given the context of working and political conditions, there was a
significant need for some sort of family leave to begin to accommodate working mothers, and by
extension, working men caring for families. That same year, the Parental and Disability Leave
Act was introduced as the first Congressional attempt at tackling the issue. It would allow for
unpaid leave to be taken for a maximum of 18 weeks in the event of the birth, adoption, or
serious illness of a child. Under this law, workers would be able to return to their positions
without penalty for taking off time to care for their children. (Marks, 1997). Though Democrats
were the primary supporters of the bill, “the new family leave policy did not seem to be an
especially partisan issue,” as many conservatives viewed it as a “pro-family bill” that also
received “favorable press coverage.” (Marks, 1997). This early support stands in contrast to the
opposition later iterations of the bill would face based on partisan divide.
In 1986, the Parental and Disability Leave Act was re-named as the Parental and Medical
Leave Act. Opposition, mainly from labor and business groups, began to emerge (Marks, 1997).
These groups contended that enacting the bill would cost over 13 billion dollars a year to
business across the country, and bipartisan support subsequently dissolved (Marks, 1997).
Because of the partisan lines that began to emerge, the bill stalled in the house and was picked
up, off and on again, over the years prior to the 1992 election season. When the bill finally
passed both the House of Representatives and the Senate, largely along party lines, it was
“drastically modified.” (Marks, 1997). Even still, then-president George W. Bush vetoed the bill
without explanation. With not enough votes to override the president’s veto, proponents of the
family leave bill decided to wait until the conclusion of the 1992 election season.
FMLA then became an integral part of then-candidate Bill Clinton’s efforts to target
female voters while campaigning. Attracting the female vote was crucial, because “since the
early 1970s, voter turnout among women had equaled or exceeded turnout among men.” (Fine,
2006). It became the first law enacted by Bill Clinton, signed a mere two weeks after he took
office (Fine, 2006).
In 1993, the Family and Medical Leave Act became the federal law, mandating up to
twelve weeks of unpaid family leave for pregnancy, childbirth, and in order to care for a sick
family member (United States Department of Labor, 1993). Its stipulations were severely altered
from its original incarnation in 1985, although it was still hailed as landmark legislation.
Regardless, FMLA, as the first federal law of its kind and scope, stands as a product of
temperamental social, political, and economic working conditions that allowed it to became
federal law.
COMMISSION ON FAMILY AND MEDICAL LEAVE REPORT OF 1996
The Family and Medical Leave Act of 1993 established a previously unprecedented
national standard. Although thirty-four states had some sort of maternity or family leave law,
these laws varied wildly by states in terms of workers covered (some state laws only covered
state workers) and reasons for leave, with many states neglecting to cover more than maternity
leave, if maternity leave was covered at all (Commission on Family and Medical Leave, 1996,
45). Policies differed by companies, and only about one quarter to one third of company policies
stipulated the same provisions and protections offered by FMLA (Commission on Family and
Medical Leave, 1996). As was later noted, “Leave was often handled on a case-by-case basis, for
a shorter duration, and health insurance and other benefits were not necessarily maintained. In
addition, the discretionary nature of many leave policies meant that leave-taking employees often
did so at some risk to their job security.” (Commission on Family and Medical Leave, 1996).
Because of these disparities between private company policies and state policies, there
was a need to understand how the new, sweeping federal family leave policy affected workers
and workplaces across the nation. In 1996, just three years after the law took effect, the
Commission on Family and Medical Leave issued a comprehensive report that measured the
implementation of the law and its successes and drawbacks, as seen through both employers and
their employees. In its findings, the report found that there were little significant drawbacks to
implementing its mandated policies; however, as will later be analyzed, there was a significant
failure of the law to adequately inform and protect all workers who may have had a need to take
time off for family care.
One of the Commission on Family and Medical Leave’s most important findings was the
affirmation of a need for family leave policy. The report found that there was a significant need
for leave, as about one fifth of the nation’s employees reported a need for some form of leave
covered under the law. Despite this, however, only about half of employees from eligible
employers were able to be covered by the Act— three years after its passage. Similarly, while
most employers were aware whether or not they are mandated by FMLA to provide leave, only
about sixty percent of the eligible workforce is aware of the Act. There was also a class divide to
take into consideration. As the Commission’s report notes, “Some groups of employees -
salaried, union members and those with higher educations - are more likely to know about the
FMLA than are others… those in higher-paying jobs are comparatively more likely to learn
about the Act from their employers.” (Commission on Family and Medical Leave, 1996). This
division early on in FMLA’s history highlights the law’s failure to assist certain populations,
despite its intentions. Because the Commission on Family and Medical Leave affirms the need
for family leave, the lack of knowledge from workers about FMLA indicates serious problems
early on in FMLA’s existence.
There were also some positive findings included in the report, mainly for employers.
Family leave under the law was easy to implement on the administrative side, as well as the fact
that there were little to no costs associated with FMLA for companies and little to no impact on
business and employee performance. Larger companies were more likely to report more negative
impacts, but these were marginal and can be explained by more employees taking advantage of
leave at a company with more people.
When looking at big picture, taken together, of the Family and Medical Leave Act of
1993, “the majority of employees who take family or medical leave find it relatively easy to
arrange, have few concerns about the job-related consequences of taking leave and are relatively
satisfied with the amount of leave they take.” (Commission on Family and Medical Leave,
1996). But this assessment leaves out the voices of those who were unable to take family leave,
whether it was because their employers did not offer it because they were not required to, they
did not fit the criteria of hours worked and employment status to be covered, or because they
were unable to sacrifice the wages they would earn and live off of no income while taking a
leave of absence. Along with the lack of knowledge surrounding their rights to take leave from
sixty percent of workers, this demonstrates that FMLA was not the landmark legislation it was
hailed as. Thus, while the Commission on Family and Medical Leave highlights the relative ease
in which companies were able to integrate the Act into its work-leave policies, it neglects to fully
address the concerns and realities of working Americans who are unable to utilize the laws for
various reasons.
FEMINIST ANALYSIS OF FMLA: THEORY AND IDENTITY INTERSECTIONS
As the Family and Medical Leave Act is the only current federal family leave policy, it
stands at the only law available to be analyzed for its effectiveness in implementation and current
practice, especially over its twenty-plus span. The 1996 Commission on Family and Medical
Leave presented a rosy picture of the law’s success; but for feminist, there are numerous
complaints in its structure. Its provisions were not unanimously agreed upon by feminists, and
indeed, the law itself represents ideological schisms within feminism and fails to hold up against
feminist critique using feminist lenses.
Almost a quarter century after its passage, the feminist criticisms of the Family and
Medical Leave Act continue to hold weight. FMLA stands as a real-world example of classic
divisions of feminist branches of thought playing out over a specific policy. Heidi Berggren
explores this in her feminist analysis of class divisions in the family leave law, writing that
“‘Equality’ feminists did not compromise on the principle of gender-equality but did
compromise on the issue of pay. This contrasts with the position of ‘difference’ feminists, who
were willing to compromise on gender-neutrality and thus to seek maternity leave. Difference
feminists also thought that income replacement, again in contrast to equality feminists, was
crucial for working class women’s ability to take advantage of a leave policy and thus were less
willing to compromise on the issue of pay.” (2007). In the end, however, FMLA was passed
without sacrificing gender equality by allowing men and women to take leave for family-care
related reasons but sacrificing pay in order to pass such a law. Because of this, Berggren argues
that although many may see the law as a step forward in efforts to win gender equality, it
benefits only middle- and upper class parents who can financially afford to take the time away
(2007).
Berggren’s conclusions echo perhaps the loudest criticism of the law: that “class
inequality is a fundamental component of the policy.” (2007). The Institute for Women’s Policy
Research’s addressed some of the general shortcomings across class in a 2007 analysis of the
Act, writing:
“According to the most recent DOL data, family leave is nearly absent in U.S. workplaces. Only 8 percent
of workers have paid family leave to care for newborns and other family members. Managerial and professional
workers and those in larger establishments have a distinct advantage over service and blue-collar workers and those
employed in smaller firms. Full-time workers are nearly twice as likely as part-timers to have paid family leave.
Workers in the Pacific Northwest and New England are also more likely to have paid family leave. Only 5 percent
of the lowest-earning workers (earning less than $15 per home) have paid family leave. Even the federal
government, which is typically thought of as a model employer, fails to give its employees paid parental leave.
Instead, federal employees who become parents must use paid vacation or sick days or unpaid time off.” (Institute
for Women’s Policy Research, 2007).
This means that geographic location, job industry/sector, and income level all bear an impact on
who gets family leave, who gets to use it under what circumstances, how much time off workers
can get, and the extent to which employees are compensated-- if at all. For workers in the lowest
paying occupations, based on education, geography, and more, these workers may be the ones
most in need of a family leave law, yet remain unable to benefit from it.
Beyond the traditional academic deconstructions of the law, FMLA was heralded in
mainstream culture as a law that promoted gender equality; as Berggren writes, “in theory, then,
women and men should fulfill both breadwinning and caring/nurturing roles, which is intended
to enhance equality for women.” (Berggren, 2007). But this has clearly fallen short in practice.
To start, although touted as a gender-equal policy, women are more likely to take time off to care
for others using FMLA, while men are more likely to utilize it for themselves in the form of sick
days (Prohaska & Zipp, 2011). Moreover, “in practice, numerous labour force statistics indicate
a persistent intersection between gender and class inequities. The unpaid designation thus
appears to be problematic from the standpoint of overall equity and fairness.” (Berggren, 2007).
This may be due in part to the fact that many single-parent families are headed by women, who
already dominate lower-paying jobs and earn less on average compared to men (Berggren,
2007). As a result, women are already disadvantaged when it comes to taking advantage of
family leave-- not because they do not demonstrate need to take a leave of absence based on
family care, but because they are unable to take leave without any sort of income during their
time away from work.
There are a number of other feminist theories that have been discussed for why FMLA
(and, by extension, any sort of federal mandate on family leave policy) have failed to result in
the sort of previously envisioned gender equality. Some argue that because laws are typically not
framed with gender as a “central theme,” the resulting policies are unlikely to “contribute
towards gender equality.” (Prohaska & Zipp, 2011). Analysis of testimony for FMLA, occurring
largely in the late 1980s, shows that there was limited feminist testimony and that instead, gender
neutrality was more likely to be invoked in support of the bill (Prohaska & Zipp, 2011). This
means that women’s perspectives on gender inequality was largely overlooked in favor of
highlighting what a national family leave policy would mean for men on a “gender neutral” leave
level. Other prominent feminist scholars, including Catherine MacKinnon, posit that “legal
equality is not possible if social equality does not exist.” (Prohaska & Zipp, 2011). The state,
which functions as a male entity, and its laws, which are seen as “objective,” there can be no
gender neutrality if “there is such a gender hierarchy in society.” (Prohaska & Zipp, 2011). As a
result, the law can be viewed as an extension of a result of the lack of inclusion of female voices
in crafting the law, or because the state is conceptualized as a male entity acting as an extension
of patriarchy.
Further academic feminist theories also explicitly analyze the success of the Family and
Medical Leave Act. The three branches of feminism analyzing workplace practices similarly
conclude, largely, that the law is ineffective in advancing feminist interests and gender equality
through gender neutrality. These branches of thought- liberal, Marxist, and social constructionist-
take different approaches in understanding the laws and arriving at conclusions of inadequacy.
For liberal feminists, who are concerned with gender stereotyping as a means of devaluing work,
the law is a “success and a failure” because women still continue to take leaves of absence at
higher rates than men, despite the law’s gender neutral intentions (Fine, 2006). For the Marxist
feminists- those that believe that “gender inequality is caused by the exploitation of women in
unwaged work for the family,”- the law is expressly not feminist because “the high incidence of
‘leave-needers,’ particularly among those with single incomes, indicates the exploitation of
women as unwaged work.” (Fine, 2006). Finally, social construction feminists would argue that
FMLA is perhaps more feminist in light of its “restructuring of work and family roles in a
manner not based on gendered divisions of labor [as means to] remedy social inequalities
between men and women.” (Fine, 2006). But more women than men are more likely to take
family leave, and the leave itself is unpaid, further devaluing domestic labor, the law cannot be
considered feminist. On all accounts, though, under more critical feminist analysis, FMLA fails
to measure up to more than “posing meaningful symbolic value.” (Fine, 2006).
These analyses highlight the ideological battles between feminists over FMLA and larger
historical splits within feminism: there is “continuing unresolved class conflict between more
working-class oriented difference feminists and more elite oriented equality feminists.”
(Berggren, 2007). Instead of focusing on implementing paid family leave at the federal level, a
more effective approach may be to hone in on efforts, state by state, with the state level perhaps
constituting a more “fertile ground for paid leave policies.” (Berggren, 2007).
FURTHER RESTRICTIONS OF FMLA AND OVERVIEW OF STATE FAMILY
LEAVE LAWS
Given some of the shortcomings found within critical feminist analysis, it is not
surprising, then, that there are also gaps and ambiguities within the law that remain beyond these
lenses. Furthermore, although mandating family leave policy continues to float around legislative
conversations, there has been remarkably little progress on the matter on both the state and
national level.
As recently as 2013, the Family and Medical Leave Act’s restrictions were so stringent
that about 40% of the working population is not covered by it (Ludden, 2013). This was for
several reasons. First, those who work part-time or less than twenty-five hours a week are not
eligible, nor are those who have worked fewer than 1,250 hours during the year (Ludden, 2013;
Wallace, 2016). Second, small businesses and those with fewer than 50 employees are not
required by FMLA to provide family leave (Ludden, 2013). This means that for employees
stringing together jobs to pay the bills, they may not fulfill the hourly requirement needed to
utilize FMLA, even if their employer is covered under the Act. Same-sex couples were also
excluded from using FMLA to care for one another during sickness until 2015 (Ludden, 2013;
United States Department of Labor, 2015). The change in policy, dubbed the “Final Rule,” was
the result of the repeal of the Defense of Marriage Act; it also extended coverage to common-law
marriages and marriages that had been performed outside the U.S, provided the marriage was at
least recognized by one state (United States Department of Labor, 2015).
After passage of FMLA, even with these issues in mind, there was a turn away from
continuing down the path to better and broader coverage of paid family leave to all women in the
U.S. Republicans in Congress were uninterested in the issue, and, due in part to fundamental
disagreements over a cohesive policy, there was no large feminist push to keep the issue at the
forefront of legislative conversations. Republicans further argue that mandatory paid family
leave would hurt businesses and enterprise (Wallace, 2016). High profile, corporate women, like
Sheryl Sandberg, also began promoting “work-life” balance, which largely focused on other
similar affluent, corporate women who could afford to do without mandated paid leave (Talbot,
2015).
Previous attempts to re-direct conversation back to the issue and mandate paid family
leave on the federal level have largely failed. In 2015, in order to provide some form of leave for
government employees, President Barack Obama signed an executive order mandating that
federal agencies allow for up to six weeks of paid family leave to care for newborn children
(Associated Press & Duncan, 2016). But this order still does not create family leave; rather, it
requires agencies to permit employees to use sick days, up to six weeks’ worth, even if they had
not yet accrued as much (Associated Press & Duncan, 2016). Critics argue that this decision is
costly and will only strain the national budget because cost of implementation is high. According
to the Congressional Budget Office, a 2009 estimate concluded “that a family leave bill could
cost the government more than $200 million a year.” (Associated Press & Duncan, 2016). Even
states are not exempt from legislative stalling the matter: the state of Washington passed a family
leave law back in 2007, intended to take effect in 2009, but the law never got off the ground and
legislation regarding the matter has since stalled. (National Conference of State Legislatures,
2016).
In spite of the hindrances mentioned above, there are more positive indicators progress at
the state level. The passage of New York’s broad paid family leave policy in 2016 has the
potential to influence similar laws up for discussion in Washington D.C, Massachusetts, and
Connecticut. Governor Andrew Cuomo of New York saw the need for paid family leave after his
mother was diagnosed with breast cancer, and other high-profile men in government, such as
Barack Obama and Joe Biden, have put their support behind such laws. As more men are get
behind these laws at the state level, it is aiding some of the success of these initiatives (by virtue
of men being the majority of public office holders; [Wallace, 2016]). Furthermore, the New York
law mandates coverage for up to twelve weeks of leave, the most out of any state currently
offering paid leave (although only employees who have worked at the company for at least six
months are eligible [Wallace, 2016]). Even though New York’s family leave law is the nation’s
newest, it stands to potentially be the best in terms of leave length compared to its peers.
California, New Jersey, and Rhode Island are the only other states in the U.S to offer
fully-paid family and medical leave, and their laws precede the 2016 New York law (National
Conference of State Legislatures, 2016). California was first, adopting their paid family leave
law in 2004. The state requires that its law only apply to employees who have worked for
employers for at least a year and have worked 1,250 hours in the year prior to the family leave
(National Conference of State Legislatures, 2016). For New Jersey workers, paid leave only
applies to employees who have worked at least 20 weeks or earned at least 1,000 times the
minimum wage in the 52 weeks prior to the leave (National Conference of State Legislatures,
2016). And for Rhode Island, their law allows all private and public employees who opt in to be
eligible for its paid family leave, but places caps on the maximum benefits employees can
receive and only allows for 4 weeks of paid leave for a child’s birth and after-care or caring for a
relative. That number may increase to 30 weeks for a worker’s own disability (National
Conference of State Legislatures, 2016). These state laws thus show similar weaknesses to
FMLA in coverage of workers. The wage cap during time taken off work can also deter low-
income workers, who may not be able to earn anything less than a full paycheck.
These laws illustrate that there are gaps in coverage and accessibility for the current
family leave policies in the United States, either in FMLA or state laws in New York, California,
New Jersey, and Rhode Island. FMLA. Consequentially, while unpaid leave across the United
States under FMLA is a step in the right direction, the nature of unpaid leave prevents poor,
working-class individuals from taking advantage of it (Talbot, 2015). For those few state laws
that exist to mandate paid leave, the employment restrictions, wage caps, and shorter leaves of
absence may further discourage workers from taking advantage of these policies.
IMPLICATIONS OF STATE LEVEL FAMILY LEAVE POLICIES
Because of this lack of a cohesive national policy on paid family leave, the states that
have it have varying restrictions on who can take leave, how much will be paid, where the
money will come from, and the length of time for which employees can take off (National
Conference of State Legislatures, 2014). This section will accordingly highlight the previously
mentioned differences between the current state laws already in practice.
In Rhode Island, state law allows parents, in-laws, children, spouses, and domestic
partners to take family leave in order to care for new or sick relatives (National Conference of
State Legislatures, 2016). But the policy only guarantees four weeks of paid leave to care for a
sick family member or new child, and the pay isn’t much-- employees could receive as little as
$72 per week, based on earnings (National Conference of State Legislatures, 2016). Low-income
families or those with medical costs associated with family leave care or larger families as a
whole may not be able to survive on $72 per week if they employee is on the lowest end of the
pay scale (National Conference of State Legislatures). While Rhode Island may provide paid
leave, the reduced pay scale and short amount of leave provided fall behind other state laws and
in comparison to nations around the world.
California has had paid family leave since 2004, when it passed the landmark legislation.
Yet family leave in the state cannot be used for parents-in-law, and the leave is only six weeks
(National Conference of State Legislatures, 2016). Only about 55% of employee’s wages are
paid out during this time, which discourages low-income, underserved workers who cannot
afford to take a pay cut during their leave (National Conference of State Legislatures, 2016).
Further hurting workers is the maximum cap in place on amount to be paid of a worker’s wages.
Along with these financial constraints, the law faces problems with awareness—a mere 36% of
participants in a California poll were aware that the option existed, even in 2015, more than a
decade after the program’s inception (Rossin-Slater, 2017). Even with its innovation in being the
first state to pass such a law, California’s paid family leave still faces problems with its rollout.
Prior to New York’s passage of paid family leave, New Jersey was the last state to adopt
such a policy. The New Jersey law applies to parents, parents-in-law, grandparent, spouse, and
domestic partners (National Conference of State Legislatures, 2016). The length of leave is only
six weeks, the same as California, although New Jersey provides up to 2/3 of wages for duration
of leave, which is slightly more than what is available to Californians (National Conference of
State Legislatures). However, a worker must take all over forms of leave before accessing paid
family leave.
The common theme among all of these laws are that, while well-intentioned, they harm
low-income families who cannot afford to take a pay “cut” for the duration of the leave while
caring for a family member or new child. Beyond issues of payout, New Jersey, Rhode Island,
and California’s family leave laws also hurts parents who are forced to leave their children early
without establishing a firm parent-child bond (Talbot, 2015). State level policies on paid family
leave still leave room for improvement; however, despite the shorter leave periods and cuts on
wage earnings during the leave, they provide a better alternative than the unpaid leave
guaranteed by FMLA.
THE FUTURE OF FAMILY LEAVE
The problems with the Family and Medical Leave Act are well documented, and even the
few state laws on family leave are not without their flaws. Across the United States, the FMLA is
failing a significant portion of workers on the basis of eligibility, with the potential for failing to
serve even more working whose right to coverage is unclear (such as the case of the intended
parents expecting a child through surrogacy) or for families who cannot afford to take off of
work to take care of sick family members. (Ludden, 2013; Wallace, 2016). It is telling that the
bulk of conversation around paid family leave revolves around maternity leave; many of the
policies discussed as being models of family leave focus on mothers. Women are more likely
than men to take family leave and use it for twice as long as men, as men are typically
breadwinners and in higher earning or higher power positions and thus they may be unable to
take leave (Gerstel & Armenia, 2009). Such emphasis does little to ease the burden of gender
roles or the expectations placed on women to do more of the childrearing.
In order to effect a lasting change, paid paternity leave must be implemented and taken
seriously as a legitimate leave of absence, in addition to passing paid family leave on a federal
level. Better programs for paternity leave may, in turn, push more men to take advantage of
family leave to care for ailing family members, rather than just women. A comprehensive policy
must also include up to twelve weeks of paid family coverage. This could be funded through
instituting small federal withholdings on paychecks, similar to systems already in place in states
with paid family leave (National Conference of State Legislatures, 2016). The U.S must also
work to continue to educate the public on the advantages of taking advantage of paid family
leave policies, which includes a greater number of less-advantaged women (single, non-white,
and non-college degree holding) taking advantage of family leave, no negative impact on
workplace operations for employers, and better parent-child relationships and involvement for
the workers (Talbot, 2015; Gault, et al., 2014). In the case of California’s paid family leave law,
there is evidence that suggests that there is a positive impact on people taking leave, particularly
for those from lower-income backgrounds. Research on the policy’s effects indicated that “the
policy nearly doubled leave-taking rates among mothers of children under one-year old…
Moreover, they [found] evidence that the impacts on leave-taking are largest for the least-
advantaged mothers (those who are unmarried, minorities, and with low education levels),
suggesting that access to government provided paid leave may reduce disparities in leave usage.”
(Rossin-Slater, 2017).
While there may be deep-rooted issues with current policies, these holes can be amended.
If the United States is to get serious about workers’ rights, it must legislate a policy that allows
for a lengthy paid leave, takes paternity leave and male leaves of absence seriously, and works to
education every citizen about the importance and benefits of utilizing such a policy. It is only
then that the rewards in the workplace and for workers may be reaped.
WHY IS FAMILY LEAVE IMPORTANT?
Because there is no nationwide family leave law, it may be easy to overlook the
substantial benefits and importance of family leave. But family leave results in a number of
documented positive health effects for families, and if leave were to be paid, more families could
collect these advantages.
Paid maternity leave has seen success in countries around the world, particularly in
Europe, as it is seen as a way to boost economic growth. As The Washington Post writes,
“European countries view paid leave for mothers as an investment in their economy.” (Etehad &
Lin, 2016). When the U.S incorporated accommodations for pregnancy under disability law post-
World War II, European nations instead recognized that “there was a need to both integrate
women into the workforce and also encourage families to have children. As a result, offering
paid maternal leave policies created job security for mothers, thereby promoting economic
growth.” (Etehad & Lin, 2016). Europe’s adoption of family-friendly labor policies are woven
into nation’s social fabric, but there science also demonstrates beneficial results.
Research has continually showed positive effects of family leave. For women with access
to paid leave and sick days, they are more likely to take more time off to spend with with their
children, resulting in positive health effects for both mother and child. Paid leave is linked to
“definite benefits to the baby, mother and family, including a decline in infant and maternal
mortality, an increase in breast-feeding rates and more involvement by fathers in their children's
lives and in child care activities.” (Wallace, 2016). By extension, then, a lack of family leave or
access to it can have negative repercussions on families’ health. The Institute for Women’s
Policy Research has further noted that “newborns have decreased access to follow-up care, lower
rates of immunization, and decreased breast-feeding by four and one-half weeks on average as a
result of early returns to work,” which can further impact children’s health down the road (2007).
Additionally, childbirth is a laborious process, and for women who choose to give birth, many of
them report “one or more physical side effects five weeks after childbirth.” (Institute for
Women’s Policy Research, 2007). For women who give birth via Casearean section, there are
significantly more health issues and more healing time required for such a major surgery. Family
leave can then act as a means to recovery for mother and child, resulting in the associated
positives that research has demonstrated.
Along with these positive repercussions, paid maternity leave policies “may help
ameliorate some of the negative labor market consequences that are disproportionately borne by
women. In particular, women who are induced to take leave and remain employed instead of
quitting may experience greater job continuity, which may increase their labor market prospects
in the future.” (Rossin-Slater, 2017). By allowing women to still have an income during a leave
of absence, women may be less inclined to quit their jobs during periods of maternity leave and
for childcare. Paid maternity leave for up to a year can also “increase the likelihood of
employment shortly after childbirth, and have either positive or zero impacts on women’s
medium- and long-run employment and earnings.” (Rossin-Slater, 2017). In New Jersey, where
paid family leave has been in effect since 2009, there are demonstrably positive results. One
study revealed that “women who had taken the leave were far more likely to be working nine to
twelve months after the birth of their child than new mothers who had not; they were also thirty-
nine per cent less likely to be on public assistance, and fifty-four per cent more likely to have
seen an increase in their wages.” (Talbot, 2015). These are indisputably positive results for the
economic sectors, both for women and for their employers. For their family, the lessened
likelihood of needing to be on public assistance points to perhaps more stability in family
finances.
The utilization of family leave by men can have further positive effects in the home. If
more men take leave, under the current FMLA policies and future state policies that promote
paid leave, it could help give more momentum to the movement for gender equality. “Men
taking leave could lead to greater acceptance of leave taking by employers and reduce the stigma
placed on women who take off to care for a child, which could in turn result in increased
workplace equality.” (Prohaska & Zipp, 2011). Furthermore, leave taking by men also has
positive effects in the domestic sphere for families. Specifically, “research has demonstrated that
men’s leave taking early in a child’s life has been linked to men’s greater participation in the
household later in the child’s life.” (Prohaska & Zipp, 2011). Equal share of the work may
reduce the mother’s stress, in turn creating a more balanced, happy, and healthy home (Prohaska
& Zipp, 2011).
The numerous benefits associated with family leave highlight the need for it because of
its positive effects on work and the home. Thus, implementing paid family leave becomes
increasingly important in order to yield these same results for all Americans.
CONCLUSION
As previously established, the United States continues to fail its people in neglecting to address
paid family leave. The Family and Medical Leave Act of 1993 was supposed to fix that;
however, instead of being this equal policy for all, it fails to cover 100% of all U.S workers,
denies employees their wages, still allows for women to shoulder to majority of family care
related duties, and is not a well-known policy to many people who may need to take family
leave. Feminist analysis of the law is similarly critical, acknowledging the failures through a
variety of lenses and perspectives. Of course, there are state laws in place for family leave. Yet
these laws are few and far between, and they are similarly patchy with issues of pay and
eligibility. The most potential for meaningful change comes at the state level, and indeed, New
York’s 2016 passage of a twelve week paid family leave marks progress. The U.S must continue
to move forward and implement a truly feminist family leave policy by focusing on fully paid
family leave for all, educating its workers about the importance of family leave and accessibility
to it in the possible. Only then can the nation begin to work towards a more feminist policy. It
would not be a perfect plan, but it would be a start.

APPENDIX
Family Leave Policy and Implications in the United States Outline

I. INTRODUCTION
a. Thesis Statement: In this paper, I will examine the history, sociopolitical context, and
feminist analysis of family leave policies, focusing on the Family and Medical Leave Act
of 1993 in the United States; I will also explore the history and general analysis of current
state family leave policies in place. I will begin with an overview of family leave policy
in the U.S relative to the rest of the globe, continuing with the history behind the federal
Family and Medical Leave Act of 1993, the resultant feminist analysis of it and its
shortcomings, current progress on paid family leave and its shortcomings, before
addressing where paid U.S paid family leave appears to be heading and concluding with
why family leave is a critical issue with far-reaching implications beyond the domestic
sphere.
a. Family leave can be used to refer to policies aimed at maternity leave and the
childcare duties of women; however, in this paper, I will differentiate between
maternity leave as separate from family leave, which constitutes a much broader
term that addresses both maternity and paternity leave, as well as extended leaves
for workers wishing to care for sick or in need family members.
b. Overview: mention history of the issue rooted in EEOC and Pregnancy
Discrimination Act, the evolution of previous proposed bills into the introduction
of FMLA and its problems, state laws that sweepingly cover paid family leave
(New York)
II. OVERVIEW OF U.S FAMILY LEAVE IN RELATION TO GLOBAL POLICIES

a. It has long been remarked that the United States lags behind other nations when it comes
to paid leave for families.
b. While the U.S currently has family leave policy, it is wholly inadequate in comparison to
nations across the world.
c. Comparisons can be made between countries considered to hold the opposite of the U.S’s
values, yet still provide lengthy, paid maternity leave (ex: Russia).
d. The Pew Research Center echoes much of these findings, finding that in a study of 41
countries spanning from New Zealand to Croatia, the United States was the only nation
without paid family leave.
i. For mothers, this may be of particular significance for the 40% of households
with children where mothers are the primary breadwinners.
ii. Furthermore, twenty-two of these nations had laws that also covered paid family
leave for fathers of biological and adopted children or parental leave, to be taken
after maternity or paternity leave.
e. The lack of paid family leave is particularly of importance when one factors in guidelines
from the International Labor Organization, who recommend that new mothers be able to
take at least fourteen weeks of paid maternal leave.
i. Current U.S policy is wholly inadequate when measured against other developed
nations and guidelines set forth of the ILO

III. OVERVIEW OF PAID FAMILY LEAVE IN THE U.S
a. First federal mention of the idea of maternity leave appears in 1963 with the
President’s Commission on the Status of Women recommending that “paid
maternity leave or comparable insurance benefits” should be provided to female
workers and employees (Gault, Hartmann, Hegewisch, Milli, & Reichlin, 2014)
b. Pregnancy Discrimination Act of 1978 prohibits employers from discriminating
or treating employees unfairly on the basis of any condition related to pregnancy
and childbirth (Gault, et al., 2014).
c. 1946: Federal Unemployment Tax amended to allow states to use surplus funds
from unemployment programs to pay for disability benefits. This funding was
later used by states to cover pregnancy as a disability and allow funds to be
accessed for women taking temporary leave from work because of childbirth
(Gault, et al., 2014)
IV. HISTORICAL CONTEXT OF THE INTRODUCTION OF FMLA

a. As more women began to enter the workforce after World War II, there became a greater
need for addressing family leave.
b. More women entered the workforce as the result of a variety of reasons: “delayed
marriage and childbirth, a decline in fertility, increases in the divorce rate, an increase in
birth among single women, the influence of feminism, and economic hardships” all
factored into greater numbers of women beginning to work outside the home (Marks,
1997).
c. In 1985, the Parental and Disability Leave Act was introduced as the first Congressional
attempt at tackling the issue. It would allow for unpaid leave to be taken for a maximum
of 18 weeks in the event of the birth, adoption, or serious illness of a child. Under this
law, workers would be able to return to their positions without penalty for taking off time
to care for their children. (Marks, 1997).
i. Underwent several names and stalled through Congress into the 1990s
d. FMLA was an integral part of then-candidate Bill Clinton’s efforts to target female voters
while campaigning.
e. 1993: Family and Medical Leave Act becomes the federal law to mandate up to twelve
weeks of unpaid family leave for pregnancy, childbirth, and in order to care for a sick
family member (United States Department of Labor, 1993).
f. Further analysis of current policy reveals a dire lack of widespread access and mandate of
family leave, let alone paid leave, in the United States.
V. COMMISSION ON FAMILY AND MEDICAL LEAVE REPORT OF 1996
a. At the time of the introduction of the Family and Medical Leave Act of 1993, there was
no federal law or consistent regulation of family leave-- or even the requirement for
provision of family leave at all.
i. 34 states had some sort of policy on leave, but policies varied wildly
(Commission on Family and Medical Leave, 1996).
b. In 1996, just three years after the law took effect, the Commission on Family and Medical
Leave issued a comprehensive report that measured the implementation of the law and its
successes and drawbacks, as seen through both employers and their employees.
ii. The report found that there was a significant need for leave, as about one fifth of
the nation’s employees reported a need for some form of leave covered under the
law.
1. Despite this, just three years after its passage, only about half of
employees from eligible employers were able to be covered by the Act..
iii. While most employers are aware whether or not they are mandated by FMLA to
provide leave, only about sixty percent of the eligible workforce is aware of the
Act.
iv. The report also highlights the positives that employers noted: namely, that the
family leave under the law was easy to implement on the administrative side, as
well as the fact that there were little to no costs associated with FMLA for
companies and little to no impact on business and employee performance.
1. Larger companies were more likely to report more negative impacts, but
these were marginal and can be explained by more employees taking
advantage of leave at a company with more people.
c. Overall, “the majority of employees who take family or medical leave find it relatively easy to
arrange, have few concerns about the job-related consequences of taking leave and are relatively
satisfied with the amount of leave they take.” (Commission on Family and Medical Leave,
1996).
VI. RESTRICTIONS OF FMLA AND OVERVIEW OF STATE FAMILY LEAVE LAWS

a. 2013: FMLA’s restrictions make it so that about 40% of the working population is not
covered by it
i. Same-sex couples were previously not permitted to use FMLA to care for
one another during sickness until 2015 (Ludden, 2013; United States
Department of Labor, 2015). The “Final Rule” also extended coverage to
common-law marriages and marriages that had been performed outside the
U.S, provided the marriage was at least recognized by one state.
ii. Those who work part-time or less than twenty-five hours a week are not
eligible, nor are those who have worked fewer than 1,250 hours during the
year (Ludden, 2013; Wallace, 2016)
iii. Small businesses and those with fewer than 50 employees are not required
by FMLA to provide family leave (Ludden, 2013)
b. Although touted as a gender-equal policy, women are more likely to take time off to
care for others, while men are more likely to utilize FMLA for themselves in the form of
sick days (Prohaska & Zipp, 2011).
c. While unpaid leave across the United States under FMLA is a step in the right
direction, the nature of unpaid leave prevents poor, working-class individuals from taking
advantage of it (Talbot, 2015)
d. After passage of FMLA, there was a turn away from continuing down the path to better
and broader coverage of paid family leave to all women in the U.S
iv. Republicans in Congress uninterested in the issue; nor is there a push from
feminists for it
1. Republicans argue that mandatory paid family leave will hurt
businesses and enterprise (Wallace, 2016)
v. Movement towards “work-life” balance promoted by high-profile,
corporate women like Sheryl Sandbergs who can afford to do without
mandated paid leave (Talbot, 2015)
e. Previous attempts to mandate paid family leave on the federal level have largely failed;
federal workers only gained paid family leave under President Obama in 2015 after he
signed an executive order mandating that federal agencies allow for up to six weeks of
paid family leave to care for newborn children (Associated Press & Duncan, 2016).
vi. The move does not create family leave; rather, it requires agencies to
permit employees to use sick days, up to six weeks worth, even if they had
not yet accrued as much (Associated Press & Duncan, 2016)
vii. but attempts to pass legislation mandating such a move, either for federal
agencies or on a federal agencies, have stalled in the past and are not
without critics
1. The state of Washington passed a family leave law back in 2007,
intended to take effect in 2009, but the law never got off the
ground and legislation regarding the matter has since stalled.
(National Conference of State Legislatures, 2016).
2. The cost of implementation is high: “The Congressional Budget
Office concluded in 2009 that a family leave bill could cost the
government more than $200 million a year.” (Associated Press &
Duncan, 2016)
f. The passage of New York’s broad paid family leave policy has the potential to
influence similar laws up for discussion in Washington D.C, Massachusetts, and
Connecticut
g. More men are getting behind these laws at the state level, which is aiding more success
of these initiatives (Wallace, 2016)
h. California, New Jersey, Rhode Island, and New York are the only states in the U.S to
offer fully-paid family and medical leave (National Conference of State Legislatures,
2016)
viii. First was California in 2004, New York just passed law in March 2016
(Wallace, 2016)
1. California requires that its law only apply to employees who have
worked for employers for at least a year and have worked 1,250
hours in the year prior to the family leave (National Conference of
State Legislatures, 2016)
2. New Jersey leave only applies to employees who have worked at
least 20 weeks or earned at least 1,000 times the minimum wage in
the 52 weeks prior to the leave (National Conference of State
Legislatures, 2016)
3. Rhode Island allows all private and public employees who opt in to
be eligible for its paid family leave, but places caps on the
maximum benefits employees can receive and only allows for 4
weeks of paid leave for a child’s birth and after-care or caring for a
relative. That number may increase to 30 weeks for a worker’s
own disability (National Conference of State Legislatures, 2016)
ix. New York law mandates coverage for up to twelve weeks of leave, the
most out of any state
1. Only employees who have worked at the company for at least six
months are eligible (Wallace, 2016)
VIII. FURTHER IMPLICATIONS OF FAMILY LEAVE POLICIES
a. FMLA: prior to the overturning of the Defense of Marriage Act, FMLA did not apply to
same-sex couples; additionally, the law still discriminates against low-income families
(Ludden, 2013)
x. Those who need the leave but cannot afford to take the time off of work
without being paid cannot access its benefits
xi. Those women take new jobs when a family emergency or pregnancy
occurs or work part-time are also unable to reap the benefits of FMLA
xii. The law also provides no clear interpretation on coverage for intended
parents who are carrying babies via gestational surrogates (Burns, 2012)
1. For these parents, there is the risk that they will not get the time to
bond with or properly care for their newborn child
b. For paid family leave, there are variances in who can take advantage of the law and
under what circumstances (National Conference of State Legislatures, 2014)
xiii. Rhode Island: applies to parents, in-laws, children, spouses, and domestic
partners (National Conference of State Legislatures, 2014)
1. Only guarantees four weeks of paid leave to care for a sick family
member or new child
2. Employees could receive as little as $72 per week, based on
earnings
a. Low-income families or those with medical costs
associated with family leave care or larger families as a
whole may not be able to survive on $72 per week if they
employee is on the lowest end of the pay scale
xiv. California: cannot be used for parents-in-law (National Conference of
State Legislatures, 2014)
1. Leave is only six weeks
2. Only ~55% of employee’s wages are paid out during this time
a. Discourages low-income, underserved workers who cannot
afford to take a pay cut during their leave
3. Maximum cap on amount to be paid
4. To further add to the issues in implementation, only 36% of
participants in a California poll were aware that the option existed,

even in 2015, more than a decade after the program’s inception
xv. New Jersey: applies to parents, parents-in-law, grandparent, spouse, and
domestic partners (National Conference of State Legislatures, 2014)
1. Leave is only six weeks
2. Must take all over forms of leave before accessing paid family
leave
3. Provides up to 2/3 of wages for duration of leave
a. Harms low-income families who cannot afford to take a
pay “cut” for the duration of the leave while caring for a
family member or new child
c. State level policies on paid family leave still leave room for improvement, especially
with short leave periods (four to six weeks in three fourths of the states); however,
despite the shorter leave periods and cuts on wage earnings during the leave, they provide
a better alternative than the unpaid leave guaranteed by FMLA
xvi. New Jersey, Rhode Island, and California’s family leave hurts parents who
are forced to leave their children early without establishing a firm parent-
child bond (Talbot, 2015)
VII. FEMINIST ANALYSIS OF FMLA

a. As FMLA is the only current federal family leave policy, it stands at the only law
available to be analyzed for its effectiveness in implementation and current practice,
especially over its twenty-plus span.
a. This means that geographic location, job industry/sector, income level, etc all bear an
impact on who gets family leave, who gets to use it under what circumstances, how much
time off workers can get, and the extent to which employees are compensated-- if at all.
b. FMLA also represents a greater ideological divide in feminism. In the years leading up to
the passage of the Family and Medical Leave Act of 1993, there was a lack of consensus
among feminist advocates on concessions they were willing to make to get the law
passed.
i. “‘Equality’ feminists did not compromise on the principle of gender-equality but
did compromise on the issue of pay. This contrasts with the position of
‘difference’ feminists, who were willing to compromise on gender-neutrality and
thus to seek maternity leave. Difference feminists also thought that income
replacement, again in contrast to equality feminists, was crucial for working class
women’s ability to take advantage of a leave policy and thus were less willing to
compromise on the issue of pay.”
1. Here we see classic divisions of feminist policies play out in real-time for
a specific policy proposal.
ii. In the end, FMLA was passed without sacrificing gender equality-- ie, allowing
men and women to take leave for family-care related reasons-- but sacrificing pay
in order to pass such a law.

2. “Class inequality is a fundamental component of the policy.” (Berggren,
2007).
c. Additionally, although FMLA was heralded as a law that promoted gender equality, this
has fallen short in practice.
i. “ In practice… numerous labour force statistics indicate a persistent intersection
between gender and class inequities. The unpaid designation thus appears to be
problematic from the standpoint of overall equity and fairness.” (Berggren, 2007).
1. Many single-parent families are headed by women, who already dominate
lower-paying jobs and earn less on average compared to men (Berggren,
2007). As a result, women are already disadvantaged when it comes to
taking advantage of family leave-- not because they do not demonstrate
need to take a leave of absence based on family care, but because they are
unable to take leave without any sort of income during their time away
from work.
d. There are a number of feminist theories that have been discussed for why FMLA (and, by
extension, any sort of federal mandate on family leave policy) have failed to result in the
sort of previously envisioned gender equality.
i. Some argue that because laws are typically not framed with gender as a “central
theme,” the resulting policies are unlikely to “contribute towards gender
equality.” (Prohaska & Zipp, 2011).
1. Analysis of testimony for FMLA, occurring largely in the late 1980s,
shows that there was limited feminist testimony and that instead, gender
neutrality was more likely to be invoked in support of the bill (Prohaska &
Zipp, 2011). This means that women’s perspectives on gender inequality
was largely overlooked in favor of highlighting what a national family
leave policy would mean for men on a “gender neutral” leave level.
ii. Other prominent feminist scholars, including Catherine MacKinnon, posit that
“legal equality is not possible if social equality does not exist.” (Prohaska & Zipp,
2011). The state, which functions as a male entity, and its laws, which are seen as
“objective,” there can be no gender neutrality if “there is such a gender hierarchy
in society.” (Prohaska & Zipp, 2011).
e. The three branches of feminism analyzing workplace practices similarly conclude,
largely, that the law is ineffective in advancing feminist interests and gender equality
through gender neutrality.
i. For liberal feminists, who are concerned with gender stereotyping as a means of
devaluing work, the law is a “success and a failure” because women still continue
to take leaves of absence at higher rates than men, despite the law’s gender
neutral intentions (Fine, 2006).
ii. For the Marxist feminists- those that believe that “gender inequality is caused by
the exploitation of women in unwaged work for the family,”- the law is expressly
not feminist because “the high incidence of ‘leave-needers,’ particularly among
those with single incomes, indicates the exploitation of women as unwaged
work.” (Fine, 2006).

iii. Finally, social construction feminists would argue that FMLA is perhaps more
feminist in light of its “restructuring of work and family roles in a manner not
based on gendered divisions of labor [as means to] remedy social inequalities
between men and women.” (Fine, 2006). But more women than men are more
likely to take family leave, and the leave itself is unpaid, further devaluing
domestic labor, the law cannot be considered feminist.
1. On all accounts, under more critical feminist analysis, FMLA fails to
measure up to more than “posing meaningful symbolic value.” (Fine,
2006).
e. The ideological battles between feminists over FMLA are indicated of a larger historical split
within feminism: there is “continuing unresolved class conflict between more working-class
oriented difference feminists and more elite oriented equality feminists.” (Berggren, 2007).
f. Instead of focusing on implementing paid family leave at the federal level, a more
effective approach may be to hone in on efforts, state by state, with the state level perhaps
constituting a more “ fertile ground for paid leave policies.” (Berggren, 2007).
IX. THE FUTURE OF FAMILY LEAVE

a. Women are more likely than men to take family leave and use it for twice as long as men
xvii. Men are typically breadwinners and in higher earning or higher power
positions- they may be unable to leave (Gerstel & Armenia, 2009)
xviii. It is telling that the bulk of conversation around paid family leave revolves
around maternity leave.
b. On a federal level, the FMLA is failing a significant portion of workers on a pure eligibility
basis, with the potential for failing to serve even more working whose right to coverage is
unclear (such as the case of the intended parents expecting a child through surrogacy) or for
families who cannot afford to take off of work to take care of sick family members. (Ludden,
2013; Wallace, 2016)
c. The broad, long-term solution is to introduce paid family leave on a federal level
xix. Mandate up to twelve weeks of paid family coverage
xx. Fund through instituting small federal withholdings on paychecks, similar
to systems already in place in states with paid family leave (National
Conference of State Legislatures, 2014)
xxi. Continue to educate the public on the advantages of taking advantage of
paid family leave policies, which includes a greater number of less-
advantaged women (single, non-white, and non-college degree holding)
taking advantage of family leave, no negative impact on workplace
operations, and better parent-child relationships and involvement (Talbot,
2015; Gault, et al., 2014)
c. In the case of California’s paid family leave law, there is evidence that suggests that there is a
positive impact on people taking leave, particularly for those from lower-income backgrounds
X. WHY IS FAMILY LEAVE IMPORTANT?

a. Paid family leave results in a number of documented positive health effects for families
i. For women with access to paid leave and sick days, they are more likely to take
more time off to spend with with their children, resulting in positive health effects
for both mother and child
ii. “The majority of the research surrounding paid leave shows definite benefits to
the baby, mother and family, including a decline in infant and maternal mortality,
an increase in breast-feeding rates and more involvement by fathers in their
children's lives and in child care activities.” (Wallace, 2016).
b. Paid maternity leave in particular has seen success in countries around the world, particularly
in Europe, as it is seen as a way to boost economic growth.
iii. “European countries view paid leave for mothers as an investment in their
economy.” (Etehad & Lin, 2016).
iv. While the U.S incorporated accommodations for pregnancy under disability law
post-World War II, European nations instead recognized that “there was a need to
both integrate women into the workforce and also encourage families to have
children. As a result, offering paid maternal leave policies created job security for
mothers, thereby promoting economic growth.” (Etehad & Lin, 2016).
c. Lack of family leave can have negative repercussions on families’ health
v. The Institute for Women’s Policy Research has noted that “newborns have
decreased access to follow-up care, lower rates of immunization, and decreased
breast-feeding by four and one-half weeks on average as a result of early returns
to work,” which can further impact children’s health down the road (2007).
vi. Childbirth is a laborious process, and for women who choose to give birth, many
of them report “one or more physical side effects five weeks after childbirth.”
(Institute for Women’s Policy Research, 2007). For women who give birth via
Casearean section, there are significantly more health issues and more healing
time required for such a major surgery.
d. Paid maternity leave policies “may help ameliorate some of the negative labor market
consequences that are disproportionately borne by women. In particular, women who are induced
to take leave and remain employed instead of quitting may experience greater job continuity,
which may increase their labor market prospects in the future.” (Rossin-Slater, 2017).
vii. women may be less inclined to quit their jobs during periods of maternity leave
and for childcare.
viii. paid maternity leave for up to a year can “increase the likelihood of employment
shortly after childbirth, and have either positive or zero impacts on women’s
medium- and long-run employment and earnings.” (Rossin-Slater, 2017).
e. In New Jersey: study revealed that “women who had taken the leave were far more likely to be
working nine to twelve months after the birth of their child than new mothers who had not; they
were also thirty-nine per cent less likely to be on public assistance, and fifty-four per cent more
likely to have seen an increase in their wages.” (Talbot, 2015).
f. The utilization of family leave by men can have further positive effects in the home. If more
men take leave, under the current FMLA policies and future state policies that promote paid
leave, it could help give more momentum to the movement for gender equality.
ix. “Men taking leave could lead to greater acceptance of leave taking by employers
and reduce the stigma placed on women who take off to care for a child, which
could in turn result in increased workplace equality.” (Prohaska & Zipp, 2011).
x. Furthermore, leave taking by men also has positive effects in the domestic sphere
for families. Specifically, “research has demonstrated that men’s leave taking
early in a child’s life has been linked to men’s greater participation in the
household later in the child’s life.” (Prohaska & Zipp, 2011).
xi. Equal share of the work may reduce the mother’s stress, in turn creating a more
balanced, happy, and healthy home (Prohaska & Zipp, 2011).
XI. CONCLUSION
a. Re-hash goals of family leave, current practices, and shortcomings
b. Include feminist interpretation and understanding of current law (FMLA)
c. Emphasize potential for future policy in the matter and suggest direction in which
paid family leave policy is going
References
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Running head: FAILURE TO LEAVE 1

Pennsylvania State University

the domestic sphere.

OVERVIEW OF U.S FAMILY LEAVE IN RELATION TO GLOBAL POLICIES

OVERVIEW OF PAID FAMILY LEAVE IN THE UNITED STATES

(Kelly & Dobbin, 1999).

To eliminate discrimination against pregnant women in the workforce, the Equal

condition related to pregnancy and childbirth (Gault, et al., 2014).

adoption. Furthermore, using Temporary Disability Insurance as a means to cover pregnancy as a

HISTORICAL CONTEXT OF THE INTRODUCTION OF FMLA

children, and family issues more.” (Fine, 2006).

office (Fine, 2006).

COMMISSION ON FAMILY AND MEDICAL LEAVE REPORT OF 1996

time off for family care.

early on in FMLA’s existence.

leave at a company with more people.

FEMINIST ANALYSIS OF FMLA: THEORY AND IDENTITY INTERSECTIONS

feminist critique using feminist lenses.

for Women’s Policy Research, 2007).

time away from work.

to measure up to more than “posing meaningful symbolic value.” (Fine, 2006).

FURTHER RESTRICTIONS OF FMLA AND OVERVIEW OF STATE FAMILY

least recognized by one state (United States Department of Labor, 2015).

IMPLICATIONS OF STATE LEVEL FAMILY LEAVE POLICIES

mentioned differences between the current state laws already in practice.

in comparison to nations around the world.

THE FUTURE OF FAMILY LEAVE

roles or the expectations placed on women to do more of the childrearing.

WHY IS FAMILY LEAVE IMPORTANT?

collect these advantages.

positives that research has demonstrated.

likelihood of needing to be on public assistance points to perhaps more stability in family

& Zipp, 2011).

would not be a perfect plan, but it would be a start.

Family Leave Policy and Implications in the United States Outline

II. OVERVIEW OF U.S FAMILY LEAVE IN RELATION TO GLOBAL POLICIES

nations and guidelines set forth of the ILO

IV. HISTORICAL CONTEXT OF THE INTRODUCTION OF FMLA

VI. RESTRICTIONS OF FMLA AND OVERVIEW OF STATE FAMILY LEAVE LAWS

participants in a California poll were aware that the option existed,

VII. FEMINIST ANALYSIS OF FMLA

in order to pass such a law.

work.” (Fine, 2006).

IX. THE FUTURE OF FAMILY LEAVE

X. WHY IS FAMILY LEAVE IMPORTANT?

family and medical leave policies. Retrieved from

The U.S. is not. The Washington Post. Retrieved from

Practice, 5. Retrieved from http://www.tandfonline.com/doi/abs/10.1300/J508v05n01_04

Times. Retrieved from http://www.nytimes.com/2016/04/06/us/san-francisco- poised-to-

approve-fully- paid-parental- leave.html

health benefits. Institute for Women’s Policy Research. Retrieved from

Retrieved from https://iwpr.org/publications/maternity-leave-in-the-united-states-paid-

around the world. Retrieved from http://www.ilo.org/wcmsp5/groups/public/---

American Journal of Sociology (105), 455-492. Doi: 10.1086/210317

In Pew Research Center: FactTank: News in the Numbers. Retrieved from

Radio. Retrieved from http://www.npr.org/2013/02/05/171078451/fmla-not-really-

act. Journal of Family Issues, 18. Retrieved from

Retrieved from http://www.ncsl.org/research/labor-and-employment/state-family-and-

Journal of Family Issues, 32, 1425-1448. doi: 10.1177/0192513X11403280. Retrieved

Economics of Women (forthcoming 2018). Retrieved from

definition of “spouse” under the FMLA. Retrieved from

Review. Retrieved from http://www.bls.gov/opub/mlr/2001/09/art2full.pdf

momentum. CNN. Retrieved from http://www.cnn.com/2016/04/05/health/paid-family-