President Joe Biden’s proposal for comprehensive paid leave looks like a boon to most workers, but it could leave millions without much-needed job protections depending on how it’s enacted.
Biden’s plan would provide 12 weeks of paid family and medical leave, but because of the way Democrats may have to move it through Congress many workers would have no guarantee they would be able to return to their jobs if they take time off.
Biden became the first sitting U.S. president to call for a comprehensive paid leave policy when he included it in his second round of proposed infrastructure spending last month. But despite bipartisan support for the leave program, it’s increasingly unlikely that Democrats will win over enough Republicans to pass the package through the normal legislative process.
If they can’t, they will likely attempt to clear it using budget reconciliation, the wonky Senate process that allows spending-related legislation to move with a simple majority, instead of the 60 votes normally needed in the Senate to overcome determined opposition.
The catch: Doing so would likely block lawmakers from being able to enact accompanying job protections, meaning that workers who take advantage of the newly established paid leave and aren’t covered under the Family and Medical Leave Act of 1993 would have no guarantee that their jobs would be waiting for them when they return. That’s because the guideline governing reconciliation, known as the Byrd rule, bars policy-related provisions that are considered extraneous to the budget.
FMLA, which provides qualifying workers with 12 weeks of unpaid family and medical leave and requires employers to reinstate them after, only applies to an estimated 6 in 10 workers — meaning that 40 percent of the workforce could lack any kind of federal legal protections promising them their jobs back should they take Biden’s paid leave. And the number of workers whose jobs are guaranteed under that law is shrinking every year because of how the restrictions are shaped.
States with their own job protection requirements and employers who voluntarily offer it would fill some of these gaps. But advocates warn that the employees who would be left in the cold are the ones most in need of the guarantee, including new entrants to the workforce, people of color and low-income workers.
“The concern is who are the people that would fear retaliation if they tried to take the leave. And that is really inequitable,” Kathleen Romig, a senior policy analysis at the left-leaning Center on Budget and Policy Priorities, said.
“Ideally … the leave would be both paid and job-protected,” she added. “But that’s not what we’re dealing with because of this constraint with reconciliation; we just would have two separate sets of rules, and it’ll be sort of a Venn diagram.”
Biden’s plan — which would provide all workers with 12 weeks of paid family and medical leave to care for themselves, a family member or a newborn, among other things — runs parallel to a proposal from House Ways and Mean Chair Richard Neal, which the Massachusetts Democrat unveiled last month. That measure was built on Democrats’ FAMILY Act, which Senate HELP Chair Patty Murray (D-Wash.) and House Appropriations Chair Rosa DeLauro (D-Conn.), among others, have pushed for several years.
“People probably thought I was the crazy aunt in the attic,” DeLauro said of first introducing the legislation. “And now we are on the cusp of seeing this realized.”
In the U.S., the only wealthy nation in the world without a federal paid leave policy, an estimated 4 in 5 workers lack access to paid family leave. More than half are estimated to lack access to paid medical leave.
Some aspects of Biden’s plan have been left open-ended. Though the program would phase in over 10 years, the proposal did not specify how. And while Neal’s plan would route the benefit through the Treasury Department, the initial draft of Biden’s American Families Plan did not specify an agency, though the White House later confirmed for POLITICO that the Social Security Administration would administer the benefit.
Perhaps most significantly, neither Neal’s nor Biden’s plan specify job protections for workers, which are “such a critical part of any piece of paid leave legislation — enabling people to feel comfortable using the policy,” Maggie Cordish, a former adviser to the Trump administration on paid leave, said. “Especially when you’re looking at long-term policy.”
Part of the logic for leaving gaps in Biden’s plan was to allow room for Congress to negotiate, advocates and lawmakers said. But robust public support for paid family and medical leave — even pre-pandemic, 8 in 10 voters said they were in favor of the policy — has Democrats feeling comfortable moving ahead without Republicans.
“We’re not going to sit around and waste the next two years negotiating with a brick wall,” said House Education and Labor Chair Bobby Scott (D-Va.), who cosponsored the FAMILY Act and whose panel has jurisdiction over the job protection policy. Budget reconciliation “doesn’t have to be the answer, but the Senate right now could not produce a single Republican vote on a measure” that a majority of Americans back.
Because Biden’s and Neal’s plans affect spending only, Democrats are confident they could enact those proposals using budget reconciliation: “I expect it to be able to get through that process,” DeLauro said.
“What this does is pay for” FMLA leave, Scott explained. “So instead of unpaid leave, it’s paid leave. Which doesn’t add much policy to it, just adds money to it, which helps in the reconciliation process.”
But the fact remains that budget reconciliation forbids anything that is not strictly related to spending, though the Senate parliamentarian ultimately decides which provisions fail that test. Job guarantees, which constitute a sort of mandate on employers, are likely to fall into category of disallowed provisions — just like a federal minimum wage hike, another employer mandate that the parliamentarian ruled ineligible for inclusion when Democrats used reconciliation to pass a $1.9 trillion coronavirus relief package in March.
Murray said she is exploring ways to clear all of the policies in the FAMILY Act, including job protections.
“I’m hopeful we can find a way to meet the Byrd rule,” she said. “I’m not taking that [the exclusion of job protections] as a given at this point. I’m working hard to make the case that it’s a budgetary impact.”
But if her efforts are unsuccessful, the workers taking paid leave would only have the protections afforded them under FMLA.
“The FMLA would reinstate people’s jobs if they’re eligible for the FMLA,” Michelle McGrain, director of congressional relations and economic justice at the National Partnership for Women and Families, said. “As time has gone on since the FMLA was passed, the job market has changed, and every year, fewer and fewer people are eligible for the FMLA.”
“People with multiple part-time jobs, people who lose their job and then find employment somewhere else, people who work for small businesses — none of those people are included. And that includes a lot of gig workers, workers in these newer, untraditional environments.”
McGrain’s group and several other advocacy organizations are working with the White House to “figure out a way to make sure that people’s jobs are protected when they take leave,” she said.
There’s always the chance that lawmakers “revisit this and try to match them up later,” Romig, of the Center on Budget and Policy Priorities, said. “Maybe they would do that if you have stories of people who can’t take this benefit to which they’re otherwise entitled because their employers won’t let them.”