Privilege, Progress, and Paid Family Leave
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The United States has an embarrassing—and for many families, financially, physically, and emotionally devastating—paid family leave problem. According to the Organization for Economic Cooperation and Development, the United States ranks last in government-mandated paid leave for new parents. Among forty-one nations, the U.S. fails to mandate paid leave for new parents.
Individual states have failed to pick up the slack. Currently, California, New Jersey, New York, Massachusetts, Rhode Island, Washington, and Washington, D.C. are the only states which provide paid family leave to eligible workers. Washington and Washington D.C.’s programs began just last year. Two more states—Connecticut, and Oregon—have programs slated to begin in 2022 and 2023, respectively. Colorado voted this past November on Proposition 118 to determine whether the state would implement its own paid family and medical leave program. Even though Colorado’s Proposition 118 passed, only nine states (plus the District of Columbia) have made meaningful steps toward a paid family leave mandate.
The need for government-mandated leave becomes evident with a quick look at private sector leave statistics. In 2019, 18% of private sector employees had access to paid family leave through their employer and 42% of private sector employees had access to fully or partly funded short-term disability insurance (“SDI”). Benefits were not evenly available across industries and professions: 46% of the information industry offered paid family leave, compared to just 5% of the manufacturing industry. While 30% of management, professional, and related occupations had access to paid family leave, only 9% of production, transportation, and material moving occupations had such a privilege. By wage, 30% of the top 25% of earners had access to leave, compared to only 8% of the bottom 25%. The Family Medical Leave Act (“FMLA”) picks up some employees of covered private sector employers, public agencies, schools, and the federal government, but FMLA provides only unpaid job-protected leave.
Beyond—and compounded by—its paid family leave problem, the United States has a maternal and infant health and mortality problem. The U.S. ranks thirty-third out of thirty-six member countries of the Organization for Economic Cooperation and Development (“OECD”) on infant mortality. Between 1990 and 2013, while other nations saw an average 3.1% annual decline in maternal mortality, the United States saw an annual increase of 1.7%. Furthermore, racial inequalities in these statistics cannot be overstated: Black women are twice as likely as non-Hispanic white women to experience life-threatening pregnancy-related complications. Racial disparities in pregnancy-related deaths among Black and non-Hispanic white women are significant even after controlling for income and receipt of prenatal care; poverty alone does not and cannot explain the stark contrast in figures. Black mothers are also twice as likely to suffer the loss of an infant before the child’s first birthday. American Indian and Alaska Native mothers in urban areas are 4.5 times more likely to die from pregnancy and childbirth than non-Hispanic white mothers, and infant mortality is higher among certain Hispanic American communities than among non-Hispanic white women.
Compounding the problem further, women of color are less likely to have access to any form of paid leave. Black women with family caregiving responsibilities are estimated to spend 34% of their annual income on caregiving expenses, compared to the 14% spent by white male and female caregivers. But access to leave is an especially vital issue for women of color, in part because women of color are much more likely to be the primary or sole breadwinners for their families—81% of Black mothers, 67% of Native mothers, and 52% of Latina mothers face such a reality, compared to 50% of white non-Hispanic mothers.
The perinatal and postpartum periods also have significant consequences for maternal mental health. Depression and anxiety affect one in seven women during pregnancy, and are associated with increased risk of preterm delivery, reduced mother-infant bonding, and cognitive and emotional developmental delays in the infant. Clinical postpartum depression occurs in 10% to 20% of new mothers, but Black women may be more than twice as likely to experience postpartum depressive symptoms as white women. The advent of a global pandemic has only underscored the issue, as a recent rapid response survey identified a substantial increase in the likelihood of maternal depression and anxiety during the pandemic. As COVID-19 is anticipated to decrease access to diagnosis and treatment among mothers, we have reached a critical moment for maternal health in the United States.
Studies show manifold and well-documented positive outcomes from states implementing paid family leave programs. California’s paid leave program, the first in the nation, demonstrates just part of the policy’s powerful potential. Before implementation, Black women in California took one week of maternity leave on average, while white non-Hispanic women took four weeks. After implementation, Black and white non-Hispanic women both took an average of seven weeks of paid family leave. The program had a demonstrable impact on parity in the duration of leave taken by white women and women of color, as well as in initiation of breastfeeding and other positive health outcomes. Even the simple (and likely inadequate) act of introducing paid maternity leave through the SDI system led to a reduction in low birthweight and preterm births, especially for unmarried and Black mothers, in five states.
Leave programs have a meaningful impact on maternal mental health. Maternity leaves of twelve weeks or less may contribute to increased risk of postpartum depression symptoms. Among women taking leaves of twelve weeks or less, every additional week of leave is associated with a reduced chance of experiencing postpartum depressive symptoms. In the first year postpartum, women who return to work sooner than six months after childbirth are at an increased risk of experiencing postpartum depressive symptoms. Notably, FMLA and most other paid leave programs offer only twelve weeks.
Paid family leave also has a significant, measurable impact on mothers’ participation in the labor force. In California and New Jersey, for example, 26% to 29% of participating women leave the labor force in the first year that they have a child—a phenomenon called “maternal labor market detachment.” After implementation of a state family leave policy, however, labor force participation among mothers increases by six percentage points, which reduces maternal labor market detachment in the first year by 20%. The results persist, with up to a 50% reduction after five years. As the pandemic produces unprecedented caregiving demands, falling disproportionately into the laps of mothers everywhere, child care lags behind the rest of the nation’s efforts to restart the economy. Now more than ever, keeping mothers in the labor market is critical to avoid forcing a generation of mothers out of the workforce.
As parents are edged out of their careers to care for children home from school or daycare, we need to think about how we value their time, their health, and their lives. We also need to think about how our choices are affecting children. The results are in, and we can do better. We need to support parents, especially mothers, especially mothers fighting racial inequalities, especially right now, if we want to see them keep their foothold in the workforce. We risk a backslide if we don’t—one we can’t afford when we’re already so far behind the rest of the world on so many fronts.
About the Author: Nola Booth is currently a 2L at Cornell Law School. She grew up in Ithaca, NY and has a degree in Biology and Society from Cornell University. She worked as a judicial intern for the United States District Court for the Northern District of New York during her 1L summer, and she spends her free time with her partner, her daughter, and her toddler.
Suggested Citation: Nola Booth, Privilege, Progress, and Paid Family Leave, Cornell J.L. & Pub. Pol’y: The Issue Spotter, (Jan. 29, 2021), https://live-journal-of-law-and-public-policy.pantheonsite.io/privilege-progress-and-paid-family-leave/.