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A Bill Even a Divided Congress Can Pass

Expectations that a House controlled by the Democrats and a Senate controlled by the Republicans can pass legislation that will improve the lives of US workers are low. Economist and columnist Paul Krugman caught the zeitgeist when he wrote, “Democrats can’t pass legislation yet, but they can get ready for 2021.” With the 116th Congress just one month old, it may be too soon to write it off completely.

The Family and Medical Leave Act (FMLA) celebrates its 26th anniversary on February 5. A serious limitation of the FMLA is that the leaves are unpaid; workers who need time off to provide urgently needed care for their families often face economic challenges caused by the loss of wages or forego the leave altogether. The Family and Medical Insurance Leave (FAMILY) Act, which will be reintroduced in both houses of Congress soon after the FMLA anniversary, creates an insurance fund that provides benefits that replace part of a worker’s lost wages. It may be one legislative initiative that can garner sufficient support from both Democrats and Republicans to pass.

In the past decade-and-a-half, following California’s expansion of its temporary disability insurance program to include paid family leave, bipartisan majorities in six more states plus the District of Columbia have created paid family and medical leave insurance programs. These programs address families’ urgent need for an insurance program that replaces lost wages when a worker suffers a serious illness, needs time to care for a newborn, or takes time to care for an elderly parent in deteriorating health. Momentum continues to build, and 2019 could see paid leave programs enacted in Connecticut, Colorado, Vermont, Oregon, and Minnesota.

California’s program built on the national Family and Medical Leave Act (FMLA). Passage of the FMLA in 1993 marked a major step forward for working families and has benefitted millions of working men and women facing the challenge of holding on to a job while welcoming a new child or caring for a seriously ill family member. But there are notable gaps in coverage of working families. Today, about 44 percent of workers are excluded from the FMLA. These are mainly low-income workers, including a disproportionate share of workers of color, who are not eligible for the job protections of the FMLA and are not entitled to have their jobs back if they go out on leave. They may have worked for a business with fewer than 50 employees or changed jobs and worked less than the required 12 months for their current employer or lacked sufficient weekly hours to qualify.

The initial paid leave programs exacerbated this unfair situation. Low-income workers paid into the insurance system and were eligible to receive its benefits, but they were unlikely to use the program without a guarantee that they would have a job when they returned. In addition, wage replacement rates were too low for a worker in a low-paid job to afford to take leave. And, the definition of family did not encompass today’s blended and multigenerational families.

The result? High-income workers could access the benefits of paid family leave while many low-income workers could not, thus inadvertently reproducing unequal access to benefits.

More recent paid leave programs have remedied this situation. In Rhode Island, all workers are entitled to get their job back when they return from a family leave. California has amended its program to provide 70 percent of weekly wages for low-income workers; Washington State provides 90 percent. The dollar amount of wage replacement has a cap that varies with the average weekly wage in the state. In several states, the definition of a family member has expanded to include siblings, grandchildren, grandparents, and in-laws in addition to a worker’s parents, spouse or partner, and minor child.

The FAMILY Act likewise needs to be amended to provide job protection, a graduated wage replacement rate, and a more inclusive definition of family if it is to meet the needs of all working families and contribute to a reduction in economic inequality.

Voters expect their representatives in Washington to govern. Passage of an expanded FAMILY Act could be a good place to start. It resonates with base voters in both parties, who believe new mothers should have paid time off to recover from childbirth, parents should have paid time off to bond with a new child, and workers should have paid time off to care for a seriously ill family member. Moreover, this legislation would have no effect on the budget, deficit or debt. Passing a national paid family and medical leave insurance program that works for all families will let a divided Congress demonstrate that it can come together to get important work done.

This column originally appeared in The Hill.

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