National Partnership for Women & Families Issues Public Comment on Labor Department Notice

WASHINGTON, Sept. 17 -- The National Partnership for Women and Families has issued a public comment on the Department of Labor notice entitled "Request for Information: Paid Leave". The comment was written and posted on Sept. 14, 2020:

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The National Partnership for Women & Families is writing to comment on the request for information (RFI) issued by the Women's Bureau of the U.S. Department of Labor (DOL) on July 16, 2020. As an organization dedicated to improving the lives of women and families by achieving equity for all women, we are committed to policies that ensure workers the ability to care for themselves and their families without sacrificing their economic security.

The National Partnership for Women & Families is a nonprofit, nonpartisan advocacy organization based in Washington, D.C. We promote fairness in the workplace, reproductive health and rights, access to quality, affordable health care, and policies that help all people meet the dual demands of their jobs and families. We work toward creating a society that is free, fair and just, where nobody has to experience discrimination, all workplaces are family friendly, and every family has access to quality, affordable health care and real economic security.

The National Partnership has been working to solve the paid leave crisis for decades. Since our founding in 1971 as the Women's Legal Defense Fund, the National Partnership has fought for every major federal policy advance that has helped women and families, including our leadership in passing the nation's unpaid leave law, the Family and Medical Leave Act (FMLA) of 1993. Since then, we have provided research, technical and policy assistance and expert testimony on paid leave to national, state and local lawmakers, advocates and businesses across the country. Today, we convene the National Work and Family Coalition, which includes hundreds of organizations nationwide working to advance national paid leave and other policies to create a more family friendly and equitable economy and country. We are also a founding member of the Paid Leave For All Campaign, a new diverse collective of national and grassroots advocates working to enact meaningful, comprehensive, universal paid family and medical leave at the federal, state and local levels and in the private sector.

The RFI notice indicates that DOL seeks to "gather information concerning the effectiveness of current state- and employer-provided paid leave programs, and how access or lack of access to paid leave programs impacts America's workers and their families," in order to "identify promising practices related to eligibility requirements, related costs, and administrative models of existing paid leave programs."

Although it is not mentioned in the RFI, there is already a vast wealth of information demonstrating the effects of not having paid family and medical leave and the benefits of state programs that provide it. DOL itself enabled several valuable studies on paid leave program design and implementation through the innovative Paid Leave Analysis Grant

Program administered by the Women's Bureau, and the Chief Evaluation Office-funded Worker Leave studies. The overwhelming weight of the research is clear: the private sector as a whole has failed to solve the paid leave crisis faced by America's workers, and publicly funded social insurance represents the only viable path forward.

I. Paid Family and Medical Leave Must Work for All Workers

At some point in their lives, nearly every working person will welcome a new child, deal with their own serious health issue or need to provide care to a seriously ill, injured or disabled loved one. Yet despite progress, most people still do not have the security they need to take time away from their jobs. Millions of people are forced to choose between their wages and their ability to care for themselves or their families. Just 19 percent of the workforce has paid family leave through their employers, and only 40 percent has personal medical leave through an employer-provided disability program./1

Among the minority of workers who do have coverage for personal medical leave through an employer's short-term disability insurance program, 70 percent receive 60 percent of their typical wages or less./2

The reality is especially stark for people of color and low-wage workers, who face the greatest disparities in their ability to access and afford leave. The lack of paid leave costs U.S. workers and their families $22.5 billion each year in lost wages alone./3

Evidence from the states with paid leave programs has shown that in order to truly meet the needs of working people, a paid family and medical leave program must meet certain basic standards. It must be comprehensive by covering all workers regardless of their job or employer and allowing leave for all FMLA-covered events, particularly as our nation ages and the shortage of paid caregivers means more working people are called upon to care for their family members. It must provide the same amount of leave regardless of a worker's gender. It must replace individuals' wages at an adequate level so that people can actually afford to take time off, as well as a meaningful duration of leave, so that people have enough time to meet their family or medical needs. It must allow leave to care for an inclusive range of family members in order to adequately reflect the way our families really look - particularly for families of color, immigrant families, and the LGBTQ community. It must guarantee job protection so that people can take the time off they need without having to worry if their job will still be there for them when they return. And it must be funded affordably and sustainably, without cutting other essential programs that working people need.

The National Partnership is particularly focused on the importance of adequate wage replacement for the lowest-paid workers. Too many workers with low wages already live paycheck to paycheck, barely making enough money to meet basic expenses, and a paid leave benefit that fails to provide enough to meet those expenses will be virtually inaccessible to these workers and their families. Research from existing state paid leave programs indicates that low income workers are less likely to take leave through the programs because the wage replacement is not high enough, and men are particularly disincentivized from taking leave./4

A market research study of California's paid family leave program found that program's modest wage replacement (at the time 55 percent) was a factor in people's decision to apply or not to apply - particularly for low-income workers./5

In addition, the RFI describes family leave as leave to "[care] for the employee's spouse, child, or parent who has a serious health condition." By limiting its request to only ask about spouses, children, and parents, the RFI misses the reality of caregiving - namely, that families come in all shapes and sizes, and that caregiving transcends the boundaries of blood, age, and legal formality. According to the most recent DOL-commissioned study of the Family and Medical Leave Act, nearly one in five leaves taken for family caregiving purposes is to care for an individual not covered under the FMLA's limited definition of "family member."/6

All nine states (including the District of Columbia) that have enacted paid leave allow leave to care for a more inclusive range of family members that more accurately reflects the lived realities of workers and their families. This restrictive definition of "family" especially leaves out single-parent and blended families, families headed by same-sex couples, chosen families, and multi-generational families. These families and their stories are essential to the inquiry on which DOL is embarking.

II. A Publicly Run Paid Leave Program Is the Best Option for Workers and Businesses

Paid family and medical leave has been shown to reap significant benefits for employers in the forms of worker retention, productivity, loyalty, morale, and competitiveness. As a testament to these benefits, over the past few years, over one hundred large brand-name businesses have introduced or expanded their paid leave policies to recognize the needs of their workforce and the benefits to their bottom line. Yet even with these developments, access to paid leave remains critically low, and has improved at a glacial pace for the majority of workers. Nationwide, only 18 percent of private sector workers have access to paid family leave through their employers, and only 42 percent have employer-provided short-term disability insurance. These numbers become even more dismal when exploring workers with the lowest wages, part-time workers, and small business employees - the very workers who would benefit the most from paid leave. In fact, access to paid family leave for the lowest-income workers has increased by just 2 percentage points in the last 7 years, to a paltry 5 percent in 2019,/7 even after the enactment in 2017 of tax credits intended to incentivize employers to offer paid leave. These low access rates and minimal progress prove that private sector policies alone are insufficient to solve our nation's paid leave crisis. Too few businesses are adopting paid leave policies, and those that do often limit access to only their highest paid, white collar employees.

Fortunately, a more universal model already exists and is proven to work. Nine states, including the District of Columbia, have enacted paid family and medical leave social insurance programs. Under this model, employees and/or employers contribute a small percentage of wages into a public fund, out of which benefits are paid as a percentage of an employee's wages. This ensures that employees can access leave regardless of their employer, position, or part-time/full-time status - meaning that the workers most in need of leave can access it. It also eliminates employers' large up-front costs of providing paid leave out of their own pockets - especially important for small businesses, who otherwise might not be able to afford this benefit, making it harder to compete with large businesses for the best employees. Polls of small businesses repeatedly demonstrate overwhelming support for a national paid leave policy structured as social insurance, and hundreds of small businesses have endorsed federal paid family and medical leave legislation. Advocates and policymakers have learned a great deal about how to structure and deliver benefits to improve utilization of paid leave programs, especially among lower-wage workers - and these lessons (along with private sector best practices) play critically important roles as new public programs are developed and implemented.

Publicly administered paid leave programs are meant to create baseline benefits that employers are free to build upon. For example, employers can "top-up" paid leave benefits provided through a public plan to replace more or all of their workers' wages and they can offer a longer period of leave. As a national paid leave system is developed, employers and insurers could work together to create products that fulfill the needs of workers and employers while ensuring an affordable, inclusive baseline program for all workers. While opponents of publicly provided and administered paid leave often claim some workers will lose better benefits that they currently have if a public program is implemented, there is absolutely no evidence from states that this has happened. The incentives that high-road employers have to use paid leave as a recruitment and retention tool will remain as it is now and the insurance market will adjust.

III. Research Demonstrates the Clear Benefits of Public Paid Leave Programs for Workers and Businesses

Research from these programs has demonstrated that working families with paid leave are more economically secure and more able to manage work and family responsibilities. Parents in California and Rhode Island reported that paid leave improved their ability to arrange child care./8

State paid leave programs improve the labor force participation of family caregivers,/9 reduce the likelihood that new mothers will fall into poverty,/10 and increase household incomes./11

The research also shows wide-ranging impacts on public health When workers do not have the leave they need -- most often because they could not afford unpaid leave -- they may defer or forego necessary medical treatment./12

Paid medical leave has been shown to help cancer patients manage their treatment and side effects./13

For babies and young children, paid leave provides time to establish a strong bond with parents during the first months of life, increases rates and duration of breastfeeding,/14 supports fathers' involvement in care,/15 improves rates of on-time vaccination,/16 reduces infant hospital admissions,/17 and reduces probabilities of having ADHD, hearing problems or recurrent ear infections./18

Paid leave may also help prevent child maltreatment by reducing risk factors, such as family and maternal stress and depression./19

Paid leave reduces the odds of a new mother experiencing symptoms of postpartum depression/20 and is associated with improvements in new mothers' health./21

In California, implementing paid family leave was linked to an 11 percent relative decline in elderly nursing home usage./22

Meanwhile, employers have adapted well to state paid leave programs. The vast majority of California employers reported a positive or neutral effect on employee productivity, profitability and performance./23

The California Society for Human Resource Management, a group of human resources professionals that initially opposed California's paid family leave law, declared that the law is less onerous than expected, and few businesses in their research reported challenges resulting from workers taking leave./24

In New Jersey, the majority of both small and large businesses say they have adjusted easily./25

Just one year after implementation of New York's paid family leave program, 93 percent of employers were in compliance with the new law./26

Additionally, state paid leave programs provide a model that works for small businesses.

The majority of small business owners support the creation of family and medical leave insurance programs at the state and federal levels, as these programs make the benefit affordable, reduce business costs, increase their competitiveness and can allow small business owners themselves to take paid leave when the need arises./27

In California, although most employers of all sizes report positive or neutral outcomes associated with paid leave, small businesses reported more positive or neutral outcomes than large businesses in profitability, productivity, retention and employee morale./28

A New Jersey survey found that, regardless of size, New Jersey businesses say they have had little trouble adjusting to the state's law./29

Finally, paid leave boosts employee morale and reduces costly turnover. In California, virtually all employers (99 percent) report that the state's program had positive or neutral effects on employee morale and 87 percent say that the state program had not increased costs. Sixty percent report coordinating their benefits with the state's paid family leave insurance system - which likely results in ongoing cost savings./30

Firm-level analysis of employers in California before and after paid family leave was implemented confirmed that for the average firm, wage costs had not increased and turnover rates had decreased./31

Workers in lower quality jobs who used the state paid leave program reported returning to work nearly 10 percent more than workers who did not use the program./32

Women who take a paid leave are 93 percent more likely to be in the workforce nine to 12 months after giving birth than women who take no leave./33

In multiple studies, New Jersey employers have noted that the state's paid leave program is beneficial for employees and manageable for employers./34

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The evidence is overwhelming: paid leave is a win-win for workers and businesses, and the most equitable, sustainable model for paid leave is a national, publicly run social insurance program that builds on the innovation that states have pioneered.

We appreciate the opportunity to submit this comment. If you have any questions, please contact Vasu Reddy, [email protected].

Sincerely,

National Partnership for Women & Families

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Footnotes:

1/ U.S. Bureau of Labor Statistics. (2019, September). National Compensation Survey: Employee Benefits in the United States, March 2019 (Table 16, Table 31). Retrieved 27 August 2020, from https://www.bls.gov/ncs/ebs/benefits/2019/employee-benefits-in-theunitedstates-march-2019.pdf

2/ Ibid., Table 25.

3/ Glynn, S. J. (2020, January 21). The Rising Cost of Inaction on Work-Family Policies. Retrieved 27 August 2020 from Center for American Progress website: https://www.americanprogress.org/issues/women/news/2020/01/21/479555/rising-cost-inaction-workfamilypolicies/

4/ Setty, S., Skinner, C., & Wilson-Simmons, R. (2016, March). Protecting Workers, Nurturing Families: Building an Inclusive Family Leave Insurance Program: Findings and Recommendations from the New Jersey Parenting Project. Columbia University Mailman School of Public Health National Center for Children in Poverty Publication. Retrieved 14 September 2020, from http://www.nccp.org/publications/pdf/text_1152.pdf

5/ State of California Employment Development Department. (2015, December 14). Paid Family Leave Market Research. Retrieved 14 September 2020, from http://www.edd.ca.gov/Disability/pdf/Paid_Family_Leave_Market_Research_Report_2015.pdf

6/ Brown, S., Herr, J., Roy, R., & Klerman, J. A. (2020, July). Employee and Worksite Perspectives of the Family and Medical Leave Act: Supplemental Results from the 2018 Surveys (Exhibit B4-3). Retrieved 27 August 2020, from U.S. Department of Labor website: https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/WHD_FMLA2018SurveyResults_Appendices_Aug2020.pdf

7/ See note 1; U.S. Bureau of Labor Statistics. (2012). National Compensation Survey: Employee Benefits in the United States, March 2012 (Table 32). Retrieved August 27 2020, from https://www.bls.gov/ncs/ebs/benefits/2012/ebbl0050.pdf

8/ Appelbaum, E., & Milkman, R. (2013). Unfinished Business: Paid Family Leave in California and the Future of U.S. Work-Family Policy. Ithaca, NY: Cornell University Press; Silver, B., Mederer, H., & Djurdjevic, E. (2015). Launching the Rhode Island Temporary Caregiver Insurance Program (TCI): Employee Experiences One Year Later. Rhode Island Department of Labor and Training and University of Rhode Island. Retrieved 27 August 2020, from https://web.uri.edu/ssirep/files/RI-Paid-Leave-Final-Report-April-2016.pdf

9/ Saad-Lessler, J., & Bahn, K. (2017, September 27). The Importance of Paid Leave for Caregivers. Retrieved 27 August 2020, from Center for American Progress website: https://www.americanprogress.org/issues/women/reports/2017/09/27/439684/importancepaidleavecaregivers/

10/ Stanczyk, A. (2019). Does Paid Family Leave Improve Household Economic Security Following a Birth? Evidence from California. Social Service Review, 93(2), 262-304. DOI: 10.1086/703138

11/ Ibid.

12/ See Brown, S., Herr, J., Roy, R., & Klerman, J. A. (2020, July). Employee and Worksite Perspectives of the Family and Medical Leave Act: Results from the 2018 Surveys, pp. 45-46. Retrieved 27 August 2020, from U.S. Department of Labor website: https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/WHD_FMLA2018SurveyResults_FinalReport_Aug2020.pdf

13/ Harrington, E., & McInturff, B. (2017). Key Findings -- National Surveys of Cancer Patients, Survivors, and Caregivers. American Cancer Society Cancer Action Network Publication. Retrieved 27 August 2020, from: https://www.fightcancer.org/sites/default/files/ACS%20CAN%20Paid%20Leave%20Surveys%20Key%20Findings%20Press%20Memo %20FINAL.pdf. The results of this survey strongly suggest that other workers with chronic or serious illnesses will have better access to treatment and care when they are able to take paid time off from work.

14/ Hamad, R., Modrek, S., & White, J. S. (2019). Paid Family Leave Effects on Breastfeeding: A Quasi-Experimental Study of US Policies. American Journal of Public Health. 109(1): 164-166. DOI: 10.2105/AJPH.2018.304693

15/ Lamb, M. (2004). The role of the father in child development, 4th ed. (pp. 1-18, 309-313). Hoboken, NJ: John Wiley & Sons, Inc.; Smith, K. (2015). After the Great Recession, More Married Fathers Providing Child Care. Carsey School of Public Policy. Retrieved 27 August 2020, from https://scholars.unh.edu/cgi/viewcontent.cgi?article=1233&context=carsey

16/ Choudhury, A. R., & Polachek, S. W. (2019, July). The Impact of Paid Family Leave on the Timing of Infant Vaccinations. I. Z. A. Institute of Labor Economics. Retrieved 27 August 2020, from http://ftp.iza.org/dp12483.pdf

17/ Pihl, A. M., & Basso, G. (2018). Did California Paid Family Leave Impact Infant Health? Journal of Policy Analysis and Management. 38(1), 155-180. DOI: 10.1002/pam.22101

18/ Lichtman-Sadot, S., & Pillay Bell, N. (2017). Child Health in Elementary School Following California's Paid Family Leave Program. Journal of Policy Analysis and Management, 36(4), 790-827. DOI: 10.1002/pam.22012

19/ Klevens, J., Luo, F., Xu, L., Peterson, C., Latzman, N. (2016). Paid family leave's effect on hospital admissions for pediatric abusive head trauma. Injury Prevention. 22, 442-445. DOI: 10.1136/injuryprev-2015-041702

20/ Chatterji, P., & Sara Markowitz, S. (2008). Family Leave After Childbirth and the Health of New Mothers. Retrieved 27 August 2020, from National Bureau of Economic Research website: http://www.nber.org/papers/w14156; Kornfeind, K. R., & Sipsma, H. L. (2018). Exploring the Link between Maternity Leave and Postpartum Depression. Women's Health Issues, 28(4), 321-326. DOI: 10.1016/j.whi.2018.03.008

21/ Pal, I. (2016). Work, Family and Social Policy in the United States - Implications for Women's Wages and Wellbeing. Doctoral thesis, Columbia University. DOI: 10.7916/D87W6C74

22/ Arora, K., & Wolf, D. A. (2017, November 3). Does Paid Family Leave Reduce Nursing Home Use? The California Experience. Journal of Policy Analysis and Management, 37(1), 38-62. DOI: 10.1002/pam.22038

23/ Appelbaum, E., & Milkman, R. (2013). Unfinished Business: Paid Family Leave in California and the Future of U.S. Work-Family Policy. Ithaca, NY: Cornell University Press; Bartel, A., Baum, C., Rossin-Slater, M., Ruhm, C., & Waldfogel, J. (2014, June 23). California's Paid Family Leave Law: Lessons from the First Decade. Retrieved 20 August 2019, from U.S. Department of Labor website: http://www.dol.gov/asp/evaluation/reports/PaidLeaveDeliverable.pdf

24/ Redmond, J., & Fkiaras, E. (2010, January). California's Paid Family Leave Act Is Less Onerous Than Predicted. Society for Human Resources Management Publication. Retrieved 27 August 2020, from https://www.sheppardmullin.com/media/article/809_CA%20Paid%20Family%20Leave%20Act%20Is%20Less%20Onerous%20Than%2 0Predicted.pdf

25/ Ramirez, M. (2012). The Impact of Paid Family Leave on New Jersey Businesses. New Jersey Business and Industry Association and Bloustein School of Planning and Public Policy at Rutgers, The State University of New Jersey Presentation. Retrieved 27 August 2020, from https://bloustein.rutgers.edu/wp-content/uploads/2012/03/Ramirez.pdf

26/ Office of Governor Andrew C. Cuomo. (2019, August 13). New York State Paid Family Leave: 2018 Year in Review. Retrieved 27 August 2020, from https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/PFL_EOYReport_2018_FINAL.pdf

27/ Rouzer, S. (2017, February 7). New Report: Small Business Owners Support Paid Family Leave, FAMILY Act. Retrieved 27 August 2020, from Main Street Alliance website: http://www.mainstreetalliance.org/small_business_owners_support_family_act; Small Business Majority & Center for American Progress. (2017, March 30). Small Businesses Support Paid Family Leave Programs. Retrieved 27 August 2020, from http://www.smallbusinessmajority.org/our-research/workforce/small-businesses-support-paidfamily-leaveprograms; Mason, J. (2019, August). Meeting the Promise of Paid Leave: Best Practices in State Paid Leave Implementation. Retrieved 27 August 2020, from http://www.nationalpartnership.org/our-work/resources/economic-justice/paid-leave/meeting-the-promiseofpaid-leave.pdf

28/ Appelbaum, E., & Milkman, R. (2013). Unfinished Business: Paid Family Leave in California and the Future of U.S. Work-Family Policy. Ithaca, NY: Cornell University Press

29/ Ramirez, M. (2012). The Impact of Paid Family Leave on New Jersey Businesses. New Jersey Business and Industry Association and Bloustein School of Planning and Public Policy at Rutgers, The State University of New Jersey Presentation. Retrieved 20 August 2019, from http://bloustein.rutgers.edu/wpcontent/uploads/2012/03/Ramirez.pdf

30/ Appelbaum, E., & Milkman, R. (2013). Unfinished Business: Paid Family Leave in California and the Future of U.S. Work-Family Policy. Ithaca, NY: Cornell University Press

31/ Bedard, K., & Rossin-Slater, M. (2016, October 13). The Economic and Social Impacts of Paid Family Leave in California: Report for the California Employment Development Department. Retrieved 27 August 2020, from https://www.edd.ca.gov/disability/pdf/PFL_Economic_and_Social_Impact_Study.pdf

32/ Appelbaum, E., & Milkman, R. (2013). Unfinished Business: Paid Family Leave in California and the Future of U.S. Work-Family Policy. Ithaca, NY: Cornell University Press

33/ Houser, L., & Vartanian, T. P. (2012, January). Pay Matters: The Positive Economic Impacts of Paid Family Leave for Families, Businesses and the Public. Center for Women and Work at Rutgers The State University of New Jersey Publication. Retrieved 27 August 2020, from https://www.nationalpartnership.org/our-work/resources/economic-justice/other/pay-matters.pdf

34/ Lerner, S., & Appelbaum, E. (2014, June). Business As Usual: New Jersey Employers' Experiences with Family Leave Insurance. Retrieved 27 August 2020, from Center for Economic and Policy Research website: http://www.cepr.net/documents/nj-fli-201406.pdf; Mason, J. (2019, August). Meeting the Promise of Paid Leave: Best Practices in State Paid Leave Implementation. Retrieved 27 August 2020, from http://www.nationalpartnership.org/our-work/resources/economic-justice/paid-leave/meeting-the-promise-ofpaidleave.pdf

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The notice can be viewed at: https://beta.regulations.gov/document/DOL-2020-0004-0001

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