Maternity leave in the United States

Between 1961 and 1965, only 14% of mothers participated in the workforce within 6 months of their child's birth.[5] During the same time period, only 44% of mothers worked during their pregnancy.[6]

Prior to the enactment of FMLA legislation in 1993, maternity leave coverage was governed by state law, collective bargaining agreements and employer policies.[7] The first set of maternity leave related policies emerged after World War I when first wave feminists lobbied for a women's health bill that gave grants to states to provide healthcare for women and children.[8] By 1969, five states had enacted Temporary Disability Insurance laws protecting employees from income loss in the occurrence of a temporary medical disability.[9] Under this legislation, new mothers were granted leaves corresponding to the benefits that other employees received for temporary illness or disability. Changes to the federal tax code in 1976 permitted working families with a dependent child to take a tax credit on child care costs.  In 1978, the Pregnancy and Discrimination Act (PDA) prohibited employers from treating a woman unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.[10] During a landmark case in 1987, California Federal Savings and Loan Association v. Guerra, upheld a California law requiring most employers to grant pregnant women 4 months of unpaid disability leave and the right to return to their same job.[11] This state-level trend of maternity leave legislation continued into the 1970s and 1980s where multiple other states passed more explicit recognitions of new mothers' rights to a temporary leave of absence. Ultimately, 12 states and the District of Columbia had implemented measures requiring at least some private sector employers to offer maternity leave packages to its employees.[7] Even in the absence of this formal legislation, employees in other states often obtained maternity leave through collective bargaining. Employees frequently held enough bargaining power to influence employer policies and negotiate for the inclusion of maternity leave protection.

Despite some localized employees' access to maternity leave, there was growing pressure for national maternity leave legislation in the early 1990s. Many new mothers continued to be excluded from such maternity leave provisions despite growing national demand. Women now enjoyed greater employment opportunities and changing gender norms that encouraged increased labor involvement. This increased female employment extended to mothers as well who now were now more likely to engage in the workforce even if they had a young child. The labor participation rate of mothers with children under the age of 1 rose from 31% in 1976 to 54% in 1992.[12] The contribution of women's earnings to her family income rose from 26.6% in 1970 to 36% in 2008.[13] In spite of a high labor force participation rate, only an estimated 40% of working women had access to explicit maternity leave protection. This inadequate national coverage provoked intense protest and growing national consensus on the value of maternity leave. Ultimately, the increased salience and galvanized national support prompted the 1993 enactment of the Family and Medical Leave Act mandating maternity leave.

Although the Family and Medical Leave Act of 1993 required employers to guarantee job-protected, unpaid leave up to 12 weeks after the birth or adoption of a new child, an estimated 41 percent of employees in the United States were not covered by the Family and Medical Leave Act in 2012.[14] Nearly ⅔ of mothers had to work during their pregnancies between 2002-2008.[15] By 2016, only 14% of US workers had access to paid family leave as an employee benefit. About two-thirds of employees (68 percent) had access to paid sick leave, and 38 percent had access to short-term disability benefits.[16] Prior to FMLA, the term “family” referred to a nuclear family where with two parents of opposite sex and the “mother” could bear a child. This was the only definition acknowledged by medical and economic research done before the LGBTQ rights movement. Only recently, studies have caught up to a modern and more inclusive definition family.

In the U.S. parents and family are federally protected under The Family and Medical Leave Act of 1993 (FMLA)[17] to go on maternity or family leave after the adoption or birth of a child.[18] Under this law, legal parents are protected for up to 12 weeks of unpaid leave (per year). The FMLA ensures the job security of parents/employees but does not protect employees who go on paid leave with their employers. Receiving the correct payment from being on leave is between the firm and the employee.[19] However, some states have laws that do protect and guarantee employees for paid family leave (see State Legislation section). Additionally, the FMLA defines “parents” as biological, adoptive, step or foster parent who stood in loco parentis or “in the place of a parent”. Parents do not include parent-in-laws though.[20]

This paragraph is for employees who are seeking to get paid using their firm's extended policies on leaves. If you choose to go on maternity or family leave, The Employee's Guide to Family and Medical Leave Act,[21] states that you can sometimes use your unspent sick time, vacation time, personal time, etc., saved up with your employer at the same time of your FMLA leave so that you continue to get paid. Importantly though, in order to use such leave, “you must follow your employer’s normal leave rules such as submitting a leave form or providing advance notice. Even if you don’t want to use your paid leave, your employer can require you to use it during your FMLA leave”.[22]

If you are choosing to use the FMLA to go on regular unpaid leave without any extended or paid leave, it's important to know the qualifications beforehand. The FMLA actually has several limiting stipulations and leaves out certain employee's conditions such as temp workers and trans employees, so only certain employees are eligible. In order to receive maternity leave protections under FMLA, employees must:[18]

• work for a covered employer;
• have worked 1,250 hours during the 12 months prior to the start of leave; (special hours of service rules apply to airline flight crew members)[23]
• work at a location where the employer has 50 or more employees within 75 miles; and
• have worked for the employer for 12 months.

The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. In general, only employment within seven years is counted unless the break in service is (1) due to an employee's fulfillment of military obligations, or (2) governed by a collective bargaining agreement or other written agreement.

The FMLA is the only law that federally protects American employees who go on maternity or family leave their resumed job security. It was signed into law during President Bill Clinton's first term in 1993 and revised on February 23, 2015 to include same-sex parents and spouses.[17] Two other Federal laws, the Pregnancy Discrimination Act[24] (PDA) and the Patient Protection and Affordable Care Act's (PPACA, also known as the Affordable Care Act, the ACA or Obamacare)[25] amendment of the Fair Labor Standards Act,[26] provide some additional protection for parents on the birth of a child. For instance, the PDA upholds maternity leave by arguing that employees who give temporarily disabled folks a disability leave should give pregnant women maternity leave with the same protections and benefits. This PDA is essentially arguing that pregnant women should have rights to the same paid of unpaid leave that temporarily disabled workers are afforded by their employers. If an employer offers this protection to temporarily disabled workers then PDA says that pregnant women should also be protected using the same processes and same benefits. Additionally, in 2014 the PPACA amendment to the Fair Labor Standards Act made it so that all insurance companies had to include maternity coverage in individual insurance plans. Therefore, filling the gap for unemployed women with individual insurance coverage plans to be able to afford the prenatal and postnatal pregnancy care that they need to have a healthy baby. Maternity care came to include:[25]

• Outpatient services, such as prenatal and postnatal doctor visits, gestational diabetes screenings, lab studies, medications, etc.
• Inpatient services, such as hospitalization, physician fees, etc.
• Newborn baby care
• Lactation counseling and breast-pump rental

These federal laws and amendments have increased accessibility and quality of care for prenatal and postnatal mothers and families. For example, before the Affordable Care Act, only 12% of insurance plans sold in the individual market included maternity coverage.[25] Also, according to a journal study on FMLA by researchers at the University of Maryland,[27] it was found that mothers who benefitted from FMLA were returned to the same job and sooner than before FMLA thus showing the impact of job stability for mothers. Nonetheless, many employees are still ineligible for the FMLA. According to the Family and Medical Leave Report in 2012, only 59% of American employees were eligible under the FMLA.[28] Additionally, employees who returned after FMLA, women exclusively, were given lower wages than the ones to when they left. This comes from the same study by researchers at the University of Maryland, as aforementioned. It should be said that these lower wages may have not been permanent since the study only went to highlight women's experience with maternity leave two years after they leave.

In recent polls from 2017, Democrats and Republicans both are in high support of federal funding for paid maternity and family leave. According to a study done by the Brookings Institution,[29] a non-profit think tank in D.C., 71% of Republicans and 83% of Democrats support for a paid leave policy. Although the study did not reach a particular compromise on how the policies should work, who should pay for it, how much, and other concerns that might factor into creating a universal paid parental leave policy, they did reach a conclusion. Amongst the diverse group of researchers with different political and economic views, everyone believed that it is worthwhile to consider a federal paid leave policy. One important reason for this is because “The US is the only advanced country that provides no public support to new parents”.

The U.S. does not presently have a federal paid maternity and family leave act. Some states, however, do include paid leave legislation for family members. States like California, New Jersey, and New York have pioneered paid leave legislature in their respective states. Reasons for paid leave might include higher job security for women and to reduce women's need for public assistance. A study by the Institute for Women's Research[30] has also shown that paid leave could reduce employer costs and lead to U.S. economic growth. Also, paid family leave has been shown to increase the health of the family by lowering infant mortality rates.[31] Paid family leave would also allow low-income families the ability to take care of their family members without having to sacrifice time and money. Reasons for not having a protected paid family leave policy in place might be justified by the fact that there are limited economic resources to sustain a program.[32] Additionally, some may disagree with the overreach of the government taking on the responsibility to keep families afloat while on leave. Compared to some other countries, the U.S. remains behind in terms of maternity leave legislature.[33]

California is the first state to offer paid paternity leave weeks (six weeks, partial payment). New Jersey, Rhode Island,[75] and New York[76] since passed laws for paid family leave. In the rest of the US, paternity pay weeks are not offered (therefore neither paternity paid leave weeks), but fathers have access to unpaid paternity leave to care for their newborns (without new income).[75][77] Often, fathers will take sick days or vacation time when they have newborns. There is also a growing number of fathers that go unpaid. Some employers are required by law to allow 12 weeks of unpaid family leave after the birth or adoption of a child. This law is under FMLA or Family Medical Leave Act.[75] Fathers who have access to paid paternity leave give mothers the opportunity to engage in paid work, with a positive effect on female labor force participation and wages.[78] In 2015, a larger proportion of working fathers than mothers who requested leave received paid leave.[79]

The United States military branches also show a minimal paternity leave. Although some branches give more time after the birth to take the leave, all branches give ten days. This type of leave is applicable to those who are married.[80]

Longer paternity leave increases the father's engagement with a child, which leads to the child's improved cognitive and mental health outcomes and fewer behavior problems.[53][78]

The United States is the only industrialized nation that does not offer paid parental leave.[81] Of countries in the United Nations only the United States, Suriname, Papua New Guinea, and a few island countries in the Pacific Ocean do not require employers to provide paid time off for new parents.[82] A study of 168 countries found that 163 guarantee paid leave to women, and 45 guarantee paid paternity leave.[83]

The United States maternity leave policy is distinct for its relative scarcity of benefits in comparison to other industrialized countries. Thus, the legislation imposes relatively few restrictions on American firms and instead underscores employer discretion in the shaping of maternity leave policy. These firms are thus free to offer maternity leave policies on terms that are more aligned with corporate interests.[34]  This United States policy differs greatly from most other western countries in terms of maternity leave provision. These stark maternity leave differentials are demonstrated in both the policy's length and compensation. In terms of the length of protected maternity leave, the United States currently ranks 20th out of the 21 highest-income countries.[34] The United States is one of three countries, along with Oman and Papua New Guinea, that does not offer paid maternity leave. Countries that offer paid maternity leave include Mexico (12 weeks), United Kingdom (40 weeks), India (26 weeks), Chile (24 weeks), Canada (up to 18 months), and China (14 weeks). Although the United States does not guarantee paid maternity leave, employers may provide paid leave if they choose. There are four states in the United States that do provide paid maternity leave and they are California, Georgia, New Jersey, and Rhode Island.[84]

In the United States like other nations, child care is not always equally shared between mothers and fathers. In the United States, fathers can have some paid leaves if they live in California or other states with similar legislation (partial paid leave). In contrast, Slovenian fathers have 12 weeks of 100% paid paternity leave. In Sweden, 480 days of 80% paid paternity leave weeks. In Norway, 49 weeks of 100% paid paternity leave weeks or 59 weeks of 80% paid paternity leave. Finnish fathers have 11 partial paid leave weeks.[77][85]

• Parental leave
• Family and Medical Leave Act of 1993
• Paid family leave
• Motherhood penalty
• Working mothers
• Work-life balance
• Maternity
• US labor law