February 2008 Bar Bulletin
Washington's Paid Family Leave Act:
A Baby Step Forward
By Jaime Drozd Allen
When it comes to parental leave, the United States lags woefully behind almost all other countries. As of 2004, the United States was among the ranks of countries, such as Kazakhstan, Kenya, Papua New Guinea and Oman, that do not provide any paid leave to new parents.1
At one end of the spectrum, Norway provides 52 weeks of parental leave at 80% pay or 42 weeks at 100% pay.2 Closer to home, Canada allows for 17 weeks of maternity leave paid at 55% of the mother's wage and 35 weeks of parental leave by either parent or shared within the first year at 55% pay.3 Mexico provides for 12 weeks' maternity leave paid at 100%.4
Along with Norway, many other European countries offer extremely attractive benefits. For example, Denmark gives 18 weeks' maternity leave at 90% pay, another 10 weeks' parental leave at 60% pay, two weeks of paternity leave at 100% pay and child-care leave up to 52 weeks for either parent up to the child's eighth birthday at 60% pay.5
With at least some paid parental leave the norm in the rest of the world, why is the United States so far behind these other countries? Here, the only guarantee, by means of the 1993 Family Medical Leave Act (FMLA), is that employees who work for employers with more than 50 employees can take 12 weeks' unpaid leave to take care of a child or ill relative.6
FMLA has made a dramatic and very real impact on the lives of many Americans. It was a major step forward in addressing the need for guaranteed leave in this country. Unfortunately, with its exemptions and limitations, the Act still leaves uncovered a large section of society who works for smaller employers. Further, it does not really compare to the rest of the world because it does not provide for any paid leave.
Currently, a bill in the U.S. Senate may offer some paid leave to those taking care of children or sick relatives. Sen. Chris Dodd (D-Conn.) and Sen. Ted Stevens (R-Alaska) have proposed the Family Leave Insurance Act of 2007.7 Washington Sen. Patty Murray and Sen. Edward Kennedy (D-Mass.) are also co-sponsors of the legislation.8
Under their proposal, parents would be entitled to eight weeks of paid leave for reasons that parallel the reasons allowed under the FMLA.9 The benefits would be tiered ranging from 100% of weekly earnings for someone earning $20,000 to 40% of weekly earnings for someone earning $60,001-$97,000.10 This bill is still in its infancy and it faces a long haul before becoming law.
In Washington, Gov. Christine Gregoire signed the country's second paid family leave act into law on May 8, 2007. This law was celebrated by family advocates as a success in providing family leave time. Prior to Washington's legislation, only California had a plan to pay parents for time off when they have or adopt a child.
The Washington act, effective October 2009, pays workers $250 per week for five weeks to care for a new child.11 The benefit is available to people who have worked 680 hours in a year and those who work less than 35 hours per week receive a prorated amount.12 To date, it is undecided how the paid leave will be funded.13
On the "something is better than nothing" theory, of course, Washington's new law is better than no paid family leave at all. I am the first to champion any paid parental leave policy as progressive, considering the dismal situation in the United States compared to other countries. I agree that any steps toward paid family leave are a step in the right direction. But, I wonder, just how excited do we have to be about a law that tangibly creates so very little?
The Washington law would pay parents the equivalent pay of $12,000 per year — a rate below the federal poverty line.14 This is the wage that new mothers are supposed to live on while they care for their newborns?
California, on the other hand, pays 55% of its workers' wages up to $882 per week for six weeks, i.e., a percentage of a more-than-living wage.15 The benefit caps for those earning more than $77,000 per year. Even if the Washington law provided the same 55% benefit, $250 a week assumes a wage of less than $22,000 per year. However, the average annual wage in Washington in 2006 was $42,584, or $818 per week.16 Even under most scenarios, a person would receive more in unemployment benefits, which provide a minimum of $122 and a maximum of $515 per week.17
I can appreciate the numerous competing interests facing the Washington Legislature as they tried to get this measure passed and know that numerous powerful interests lobbied against it. But when the result is a watered-down, unfunded family leave policy that lets our state say it has a policy, yet would pay parents a sub-poverty benefit to care for their children, just how much celebrating should there be? We can hope that Washington's leave policy is a step in the right direction that will be bolstered in the years to come.
Even more than the measures that states take individually, I am hopeful that our federal government will see the benefit and the very real family value in — and catch up with the rest of the world by — providing paid family leave.
Jaime Drozd Allen is an associate in the Litigation Department at Ogden Murphy Wallace, PLLC. She can be reached at email@example.com.
1 The Clearinghouse on International Develop-ments in Child, Youth, and Family Policies at Columbia University, Table 1.12: Maternity, Paternity, and Parental Leaves in the OECD Countries 1998-2002, at http://www.childpolicyintl.org.
6 See United States Department of Labor, Fact Sheet # 28: The Family and Medical Leave Act of 1993 at http://www.dol.gov/esa/regs/compliance/whd/printpage.asp?REF=whdfs28.htm.
11 Seattle P.I., September 9, 2007, "What Washington's Paid Family Leave Benefits Cover," http://seattlepi.nwsource.com/local/331030_familyleaveside10.html.
14 United States Department of Health and Human Services, The 2007 HHS Poverty Guidelines, http://aspe.hhs.gov/poverty/07poverty.shtml.
15 See, supra, note 11.
16 "Washington's average annual wage, unemployment benefits rise" (June 8, 2007), http://fortress.wa.gov/esd/portal/waannualwage.