FMLA and Parental Leave in the US

By Published On: August 26th, 2022

Experts explain what it is, what it isn’t, and what needs to change (spoiler: a lot).

By Ashley Ziegler

Experts: Sharita Gruberg; Kathleen Romig; Molly Weston Williamson

There is so much that goes into preparations for a new baby, from planning the nursery to purchasing baby gear to interviewing pediatricians to find the right fit for your family. If you’re a working parent, one crucial thing you will need to prepare for is parental leave.

Unlike every developed country in the world, the U.S. doesn’t have a universal maternity leave policy. Instead, we have the Family Medical Leave Act (FMLA), which is what many Americans have to rely on when they are ready to take time off to welcome the arrival of a new baby. Unfortunately, FMLA is incredibly confusing because not everyone is eligible, and even if you are, it’s surprisingly not all that helpful for families. So if you’re planning on taking some time off work to bond with your bundle of joy, here’s what you need to know about your rights under FMLA (including whether or not you even qualify for it).

What is FMLA?

First, while FMLA is basically synonymous with maternity leave in the U.S., it’s important to understand that this protection is not limited to just maternity leave. FMLA, which was signed into federal law in 1993, is in place for a variety of reasons, with the birth of a child being only one of them.

Sharita Gruberg, vice president for economic justice at the National Partnership for Women and Families, the organization that originally drafted the FMLA, explains, “[FMLA] guarantees eligible employees up to 12 weeks of unpaid leave per [12-month period] to care for a newborn or newly adopted child, recover from their own serious health conditions, including pregnancy, or care for a seriously ill family member.”

The reason FMLA is so often lumped in with general maternity leave is that new parents typically max out on their allotted 12 weeks of leave after the arrival of their newborn. This time is crucial for baby and parental bonding, for the birthing parent to heal physically, and for new parents to get into a good routine with their little one. You don’t have to be the birthing parent to take advantage of FMLA, though. According to Molly Weston Williamson, a senior fellow at the Center for American Progress, FMLA is available to all new parents, including birth parents, partners of birth parents, adoptive parents, and foster parents, regardless of their gender.

In fact, she says, if you are an adoptive or foster parent, you can use your FMLA leave entitlement to “cover time off for certain needs that occur prior to the formal placements,” such as “[meeting] with an attorney or a social worker in preparation for the [child’s] placement.”

What Are the Benefits?

So, FMLA guarantees you time off for certain family events and health needs, but what does that actually mean? And what other benefits does it come with?

Kathleen Romig, director of Social Security and disability policy at the Center on Budget and Policy Priorities, explains that if someone is using some (or all) of their allotted 12 weeks of time off under FMLA, then their job is protected. They cannot be fired for taking this time off.

“If you’re covered by [FMLA], your employer has to hold onto your job for you, either your exact job or at a substantially equivalent job. You can’t be fired. You can’t be retaliated against. You must be allowed to come back, and they must allow you up to 12 weeks of time away from work,” she says.

It’s important to note, however, that if your job is eliminated due to organizational restructuring, you can still be laid off while you are out on FMLA leave. That being said, if your job is eliminated, your employer can still opt to bring you back and place you in an “equivalent” role somewhere else, but you likely won’t have a say in what that role is (which means you may not like it).

Williamson adds that, in addition to job protection, FMLA gives workers the right to keep their health insurance at the same terms they have during regular employment. “What that means is if, while you’re working, you pay part of the premium and your employer pays part of the premium for your health insurance, while you’re on FMLA leave, your employer also has to keep paying their share of the premium.”

Who Qualifies for FMLA?

Job protection and continued health insurance are huge benefits for new parents, so FMLA is nothing to scoff at. However, one of the problems with FMLA is that not everyone qualifies for these very important benefits. In fact, according to Romig, around 44% of workers in the U.S. are not covered by FMLA, either because they don’t work for a covered employer, they don’t meet hourly requirements, or because of their length of service.

“The FMLA covers only workers who work for organizations of 50+ employees and who have worked for their current employer for at least 12 months and 1,250 hours per year,” she says.

Also, Gruberg notes, it’s important to keep in mind that even if you meet these qualifications and are considered an eligible employee, your reason for taking the leave also has to qualify under FMLA. Thankfully, the birth, adoption, or foster care placement of a new child is covered. (More information can be found here.)

What Is the Difference Between FMLA and Paid Family Leave?

If you haven’t already noticed, one key benefit that is missing from FMLA coverage is pay. In fact, when asked about the limitations of FMLA, Gruberg, Romig, and Williamson all agree on one thing: that it is unpaid.

While you are guaranteed a right to take time off from work as needed for maternity leave (and other medical reasons) under the federal government, you do not have the right to pay during your time off. This is why you’ve probably heard a lot of political talk about “universal paid family leave” programs in the U.S. So, not only are 44% of U.S. workers ineligible for FMLA in general but of those who do qualify, none of them are guaranteed payment from the federal government.

Williamson explains that in practice, FMLA leave being unpaid “means that if you can’t afford to take time unpaid, and you don’t have some other source of income, the fact that you technically have this right doesn’t really matter if it’s not affordable for you to take it or if it’s not affordable for you to take as much time as you need.”

“We are one of six countries in the world that do not provide workers guaranteed access to paid leave,” says Gruberg. She adds, “Workers lose a major source of income at precisely the time when they may be incurring significant medical expenses.”

In order to cover the cost of this time away from work, most employees have to rely on short-term disability (if they have access to it) and employer-provided paid time off (PTO). For American citizens fortunate enough to be living in California, Colorado, Connecticut, D.C., Delaware, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, or Washington, they do have state-provided paid family leave benefits (though the specifics vary by state).

Even if an employee has the ability to utilize all three of these benefits, the payout rules and requirements for each differ based on everything from the reason they are utilizing the leave down to who their individual employer is. There is no consistency.

All of this being said, every employer has the option to provide their employees with paid maternity/family leave, it’s just a matter of whether or not they’re willing to do so. Unfortunately, as Romig points out, there are huge gaps in access to employer-paid family leave programs. “If you work at Google, you have a generous paid family medical leave policy,” she explains, “But if you work at [a number of other organizations in the U.S.], you don’t.”

Advocating for Universal Paid Family Leave

According to Romig, the Department of Labor has done numerous studies on FMLA. She says they’ve looked at data around how many people utilize this leave, analyzed when people opt not to take it and have asked why eligible employees don’t take it (or take as much as they are eligible for) even when they need it. “The number one reason [why people say they don’t take FMLA leave] is money,” she explains, “They need to pay the rent. They need to buy groceries. They just can’t afford to pay the bills.”

It’s a heartbreaking realization—and it’s one too many Americans can relate to. Especially lower-paid workers, single parents, and workers of color. Gruberg explains, “55% of parental leaves taken by Black women in a given year are unpaid. This is a significant economic loss estimated at $844.6 million each year in wages lost by Black women on parental leave.”

Given the limitations of FMLA, Williamson, Romig, and Gruberg are all part of organizations lobbying for the federal government to implement a universal paid family leave program of some kind. Ideally, a universal program that “wouldn’t be dependent on what state you work in or what industry you work in or where you work or how much you earn,” says Romig.

Their work for universal paid family leave programs isn’t partisan or self-serving, either, this is something that most Americans want. “The need for a national paid leave program remains urgent and the proposal has overwhelming bipartisan support from voters,” says Gruberg.

As hard as these organizations are working for families in the U.S., it is only the beginning. Individual citizens need to advocate for these programs, too.

“There continues to be significant advocacy work at the state and federal levels to expand access to paid leave and that’s something we’re continuing to fight for,” says Williamson, “And that I think for folks who are new or expecting parents, who aren’t getting what they need, or they see some of these gaps, there are a lot of opportunities to get involved, to share your story and to work, to ensure that everybody has the rights and protections they need.”

So, how can you help? Williamson suggests connecting with ongoing campaigns like Paid Leave for All or doing some research to find campaigns that are local to your state or area and learning how you can get involved. You can also pick up the phone to call your state and federal legislators (or, if you hate the phone, you can always draft an email or letter instead). “Just explain how important this is,” says Romig, “How important it is for [parents] to be home with new babies, to take care of themselves during pregnancy, so that they’re able to have a healthy delivery, to bond with their children, to establish healthy habits with feeding and sleep.”

One of the easiest ways Williamson says you can help advocate for universal paid family leave is by simply sharing your story. “I think it makes all the difference when people really hear from individuals,” she says, “Speak up about what your needs are and how they’re not being met, and how providing a strong, guaranteed paid leave infrastructure could really help you and your family.”

Even if your days of maternity leave are long gone, remember, FMLA is meant to cover health care needs for you and your kids far beyond the early newborn days. Imagine if you, your partner, or your little one becomes chronically ill in the future, and you want to utilize FMLA leave, but can’t afford to. This is where a universal paid family leave program could truly save your family.

Romig says it best: “Families shouldn’t be forced into this difficult decision between doing these really healthy and really important things versus putting food on the table or paying the rent.”

To find your state and federal representatives, visit Open States.