Document Type

Article

Publication Date

2005

Abstract

The problem of combining work and family life is perhaps the central challenge for the contemporary American family. In this Article, I evaluate and defend government provision of paid family leave, a benefit that would allow workers to take compensated time off from work for purposes of family caregiving.

A legal intervention in the arena of work-family accommodation can only build on some prior normative understanding of the family, and embedded within that, contested value choices about women's identities and entitlements in workplace, family, and society. I am not the first legal scholar to advocate paid family leave of some kind.The additional contribution here is to offer a normative defense of such a program based on its potential to increase the workforce participation of those who bear the principal obligation of caregiving – women. This, I argue, will increase equality of economic opportunity and the distribution of social power associated with status in paid labor markets. It also will enhance women's capacity to determine the conditions of their lives. In advocating paid family leave, I distinguish myself from those who would make family care subsidies available equally to caregivers who do and do not participate in the paid workforce, and from those who would shun workplace accommodations in favor of more "commodified" caregiving institutions external to the family.

Paid family leave is particularly valuable, I argue, because other possible alternatives, such as daycare, cannot entirely replicate the value of personal time away from work to engage directly in family caregiving. For women currently working who want to give personal care to family members but cannot afford adequate time off to do so, paid family leave will improve their quality of life and benefit those they care for. For women on the margin between working and staying home, the availability of paid leave may make market work more feasible and attractive, and as a result, increase their attachment to the workforce. At the same time, we must be wary of overly generous leave provision. Very generous leave provisions might encourage such lengthy absences from the job as to undermine women's development of human capital and connection to the workforce. Further, the method used to finance the program must be sensitive to important issues of distributive justice and the challenge of ensuring that the program confers gains on its intended beneficiaries. The government should spread at least some of the costs of the program beyond those workers – women in their childbearing years – most likely to take leave.

Paid family leave would have two components. It would have a family illness leave component, i.e., temporary paid leave for someone who is not herself incapacitated, but who has a familial obligation to another person who is seriously ill or disabled. It would also have a parental leave component, covering non-medical temporary leave for purposes of allowing parents to nurture newborn children. The Family and Medical Leave Act ("FMLA") mandates that employers give up to twelve weeks of job-protected leave per year to workers who need to care for a newborn child or their own serious illness or the illness of a family member. Coverage limitations mean that only about half of all workers, and less than one-third of steadily employed new mothers, receive these protections. More importantly, the law does not require wage replacement. This makes the American system the least generous of industrialized nations. All western European nations have programs that give women workers the right to at least three months paid maternity leave, with as much as a year or more in some countries, as well as paid parental leave – for either parent.

Disciplines

Family Law | Health Law and Policy | Law

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