A CRITIQUE OF NEW YORK PAID FAMILY LEAVE.

• Author: Petrocelli, Anna

Introduction 1251 I. Understanding the FMLA and NYPFL 1255 A. The History of Paid Family Leave in New York 1255 B. Comparing and Contrasting the FMLA and NYPFL 1256 C. Recent Developments in Family Leave Law 1260 II. The Discriminatory Impact of NYPFL 1262 A. Negative Impact on All Low-Income Workers 1262 B. NYPFL's Particular Impact on Low-Income Women 1267 C. NYPFL's Impact on People of Color 1269 III. Flexible Leave Policies Have Been Proven to Be Feasible and Practical 1271 A. Corporations Take Action Based on the Proven Benefits of Paid Family Leave 1271 B. International Approaches Amplify the Feasibility of Paid Leave Policies 1274 IV. NYPFL Should be Expanded 1275 Conclusion 1277 INTRODUCTION

In 2013, Rachel Walsh, a thirty-two-year-old mother, was fired from her job for taking an extended leave of absence. The reason? Her baby had cancer. After her termination, Ms. Walsh's employer cancelled her private health insurance covering her baby's medical expenses. Ms. Walsh was faced with no choice but to obtain government insurance, which provided less coverage than her private insurance plan and cost significantly more money. Because of these costs, as well as her new lack of income, Ms. Walsh was forced to rely on her family's help to pay for other necessary expenses. (1) While some people can afford to leave their jobs when faced with the illness of a family member, Ms. Walsh's story is the reality for many in the United States. (2) Invariably, serious illnesses like cancer require long and frequent doctor's visits, which can generally endure for months or even years. (3) In some circumstances, individuals with serious illnesses are unable to go to doctor's appointments alone and need to rely on family members for support. (4) For example, children, individuals above a certain age, and significantly ill individuals on heavy doses of medication may be unable to drive themselves to appointments. (5) The need for support, however, does not stop there. In addition to transportation to appointments, ill individuals are frequently unable to make themselves food or get to the bathroom on their own. (6) Younger ill children, for example, cannot advocate for themselves, understand treatment options and protocols, or sign documents regarding treatments. (7) Thus, a parent or caregiver can easily spend every minute of the day making sure an ill family member's needs are met.

Taking care of an ill family member is one of the most physically and emotionally trying experiences anyone can face. This experience is uniquely difficult, however, for low-income workers. (8) Low-income workers dealing with ill family members often cannot afford to hire an outside caretaker, and so they are faced with the impossible choice of remaining employed or leaving their jobs to care for their loved ones. (9) Accordingly, the U.S. government and several state governments have enacted family leave laws ensuring that employees who take time off to care for family members can return to their jobs. (10) Specifically, the federal government enacted the Family Medical Leave Act (FMLA) in 1993, a broad statute whose gaps could be filled by uniquely tailored state statutes. (11) In the years following, states enacted their own, more specific leave statutes to address leave for their residents. (12) The FMLA and its state corollaries, however, have done little to actually combat the issues that many low-income workers face when deciding to leave work to care for an ill family member. (13)

In recent years, the COVID-19 pandemic has shone a light on the weaknesses of both state and federal family leave laws, with politicians and family health advocates pushing for reform. (14) They argue that while state family leave laws are intended to further supplement the FMLA, in reality, these laws do little more than re-emphasize the precarious situation that low-income workers already face when dealing with a family member's illness: low-income workers are forced to choose between their jobs and their family. (15) Specifically, New York Paid Family Leave (NYPFL), (16) albeit one of the most flexible state leave laws in the United States, leaves many low-income New Yorkers helpless when faced with a family member's illness. (17)

As currently structured, NYPFL does not apply to many New Yorkers at all. (18) It has strict qualification requirements that many New Yorkers seeking paid leave simply do not meet. (19) Even if a New Yorker does meet these qualifications, however, the paid leave ultimately granted under the law as currently structured has several restraints. NYPFL places limitations on the pay that individuals may receive while taking leave, and the duration of the leave that they may take. (20) As a result, even if a New Yorker does qualify for leave (which, in and of itself, is a difficult task), the decision to take it, given the restraints qualifying and narrowing its application, is challenging. (21) That is, many low-income workers who do qualify to take paid leave cannot afford to take it given the law's stringent duration requirement and the limited pay the statute allows. (22)

Despite the fact that all state leave laws in the United States present difficulties for low-income workers (no state's leave law is more flexible than NYPFL), (23) and that these laws address a variety of situations for which a worker may take leave beyond caring for an ill family member, (24) this Note will specifically explore the issues that NYPFL presents to low-income workers dealing with ill family members. Even though NYPFL is held up as an example of one of the most flexible leave laws in the nation, (25) this Note argues that it still falls short in many ways and must be strengthened. This Note argues that in order for NYPFL to supplement the FMLA in a way that actually benefits low-income workers, it must be amended. Necessary reforms include: removing the requirements that bar many New Yorkers from becoming eligible to receive paid leave in the first place; modifying current requirements to increase the length of time that individuals can take leave, and the amount of pay an individual can receive while on leave; and implementing a new requirement that those who qualify for leave and need to take it, actually do so. (26)

Part I describes both the FMLA and NYPFL and explains how these two laws work together to provide leave to New Yorkers. (27) Part II identifies the limitations of these laws, with a focus on the obstacles that NYPFL presents to low-income workers. It then examines the obstacles these laws present to women and people of color. (28) To examine the feasibility of implementing a more flexible and workable paid leave law in New York, Part III looks at flexible private paid leave programs, the costs for corporations to implement these leave policies, and lenient approaches to paid leave adopted by other countries. (29) Part IV recommends specific changes to NYPFL. (30)

1. UNDERSTANDING THE FMLA AND NYPFL

   Part I first describes the history of paid family leave in New York. Next, it compares and contrasts the FMLA and the NYPFL. Finally, it reviews recent updates to paid family leave laws in the wake of COVID-19.

   1. The History of Paid Family Leave in New York

      In 1993, Congress enacted the FMLA -- the nation's first federal paid family leave law. (31) The FMLA entitles certain employees to "take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave." (32)

      The law's application to all employees, irrespective of gender, was a major triumph for women. The Supreme Court emphasized the law's goal of attacking gender stereotypes in the workplace in Nevada Department of Human Resources v. Hibbs. (33) The Court noted that by setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA would attack the stereotype that only women are responsible for family caregiving, thus reducing employers' discriminatory incentives. (34) As the Court noted, women have historically taken on the burden of caregiving in the United States. (35) This impediment to women achieving equal rights in the workplace is an issue the FMLA aimed to combat. (36) The law sought to minimize this burden in at least two respects. Allowing all employees to take leave, including men, would reduce the stigma around women's caregiving responsibilities, and it would encourage men to share some of the caregiving responsibilities that traditionally have been shouldered by women. (37)

      Given that it is a federal statute, the FMLA inevitably left some gaps in its coverage. To fill in these gaps, (38) in 2016, then-Governor Cuomo signed into law the NYPFL. (39) In advocating for the law's enactment, Governor Cuomo emphasized that the unpaid leave set forth in the FMLA was inadequate. He said, "there are many people in this state who don't have the choice-a parent is dying, a child is sick, they can't take off work... [w]e should have a paid leave program paid by employees who can get 12 weeks of pay." (40) While NYPFL certainly filled in some of the FMLA's gaps, it left many untouched, therefore leaving many New Yorkers with the same choice that Governor Cuomo aimed to end with its enactment.

   2. Comparing and Contrasting the FMLA and NYPFL

      The FMLA has basic requirements that lay the groundwork for states to supplement with their own, more substantive leave laws. As such, NYPFL has a requirement that leave must be taken concurrently with FMLA leave, where possible. (41) A New Yorker may receive the benefits of the FMLA and NYPFL at the same time.

      To be eligible for leave under the FMLA, a worker must either be a government employee or an employee of a private company with fifty or more employees, who has worked for that private employer for at least 12 months, for a minimum of 1250 hours (or 156 days)...