A Need Not Being Met: Providing Paid Family and Medical Leave for All Americans

• Date: 01 January 2018
• Published date: 01 January 2018
• DOI: http://doi.org/10.1111/fcre.12329
• Author: Seth K. Kornfeld

A NEED NOT BEING MET: PROVIDING PAID FAMILY AND

MEDICAL LEAVE FOR ALL AMERICANS

Seth K. Kornfeld

1

Many parents in the United States face the quandary of whether to take time off from work to care for themselves, their

children, or other family member, understanding that their jobs may not be there upon return and they will receive no income

during their leave. The Family and Medical Leave Act has not lifted this burden; it only provides for unpaid leave. Four states

and several cities have implemented paid family and medical leave statutes with both employees and employers benefiting.

This Note proposes a uniform paid family and medical leave statute based on other countries’ statutes; proposed federal

legislation; and statutes in New York, California, and San Francisco.

Key Points for the Family Court Community

Unpaid family and medical leave is detrimental to the family unit and often causes stress and strife within households.

Unpaid family and medical leave ignores basic family values by making individuals take uncompensated time off from

work to care for a newborn or an ill family member.

Paid family and medical leave helps parents care for children or other family members without forfeiting income or

employment.

Paid family and medical leave can benefit both employers and employees.

Paid family and medical leave may reduce postpartum depression in new mothers.

Paid family and medical leave may increase the number of women in the workforce.

Keywords: California; Family Medical Leave Act; New York; Paid Family Leave; San Francisco; Sweden; and Uniform

Statute.

I. INTRODUCTION

Jeanine Sato was pregnant with her first child.

2

She was working, and like 40% of married work-

ing women, she was the primary breadwinner in her household.

3

The family-friendly business

Jeanine worked for demanded she return to work six weeks after the birth of her daughter or risk los-

ing her job.

4

This was, and is, perfectly legal for her employer to do, as is the case for nearly 40% of

businesses within the United States.

5

This employer-mandated policy caused an irreconcilable rift

between her and her employer, and Jeanine left her job as a result.

6

On top of this, Jeanine’s delivery

was stressful and difficult, as she had a colicky baby, who, during the first three months, cried for

hours on end without relief.

7

More disconcerting than Jeanine’s story is Tara’s story.

8

Tara was nine months pregnant with her

second child.

9

Tara was a manager at a small business, and was also the sole breadwinner in the

household.

10

Her husband was unable to work due to an autoimmune disorder.

11

In the days leading

up to giving birth, Tara was not only concerned about giving birth and having a healthy baby, she

was also concerned about how soon she would need to return to work.

12

Tara’s workplace was not

covered under any federal law that mandated time off for her.

13

Even if her employer was covered

under a federal statute, Tara could not afford to take time off because she would not be compen-

sated.

14

Consequently, Tara’s employer created its own rules.

15

Under her employer’s policy, Tara

was mandated to return to work after just twenty unpaid days with no employment guaranteed upon

return.

16

Tara’s twenty days were cobbled together and consisted of thirteen vacation days,

weekends, and President’s Day.

17

With such limited time off, Tara was concerned that if she had an

Correspondence: sethkornfeld1@gmail.com

FAMILY COURT REVIEW, Vol. 56 No. 1, January 2018 165–179

V

C2018 Association of Family and Conciliation Courts