The National Fight for Paid Leave Has Moved to Statehouses

Connecticut, Massachusetts, Colorado, and Hawaii could be next.

Dad and newborn baby.
Photo illustration by Slate. Photos by Thinkstock.

Deb Fastino is confident: One way or another, paid family leave is coming to Massachusetts this year.

“We are hopeful that it will go through the legislature. But if we don’t get what we want, we will go through the ballot,” said Fastino, executive director of the Coalition for Social Justice and the co-chair of Raise Up Massachusetts, which has amassed over 100,000 signatures to get paid family leave on a statewide ballot this November. Paid family leave is so popular, said Fastino, that it will eventually win convincingly, particularly if presented to the fired-up group of voters likely to turn out this fall. If the legislature and business community want a say in what goes into the state’s paid leave law, then they have to act before July 3, when the coalition files their last round of signatures to the Massachusetts secretary of state’s office.

Over 75 percent of Americans support a form of paid family leave–it’s a bipartisan group that cuts across all income levels, and it includes the paid family leave that comes for caring for a parent, spouse or child, not just new babies. Despite some campaign rhetoric that Ivanka Trump would spearhead a federal paid family leave plan, the only proposed Republican plan so far, one from Marco Rubio, is unsustainable, limited to only parental leave, and would undermine Social Security.

But national paid leave efforts haven’t stalled; they’ve simply been rerouted to statehouses.

Twenty-one states currently have pending legislation for paid leave laws, in addition to the five states and District of Columbia that have paid family leave laws already. Population-wise, this is less than 24 percent of the country. Perhaps not coincidentally, all of the states to have passed paid family leave laws voted for Hillary Clinton.

“States are laboratories for invention,” said Wendy Chun-Hoon, co-director of Family Values @ Work, an organization working with paid family leave coalitions at the state level. “States are paving the way to eventual federal policy,” she said, and because states have over a decade of lessons to learn from (California’s paid family leave policy was implemented in 2004, followed by New Jersey in 2009), they also know what mistakes and pitfalls to avoid.

“States have more confidence,” said Chun-Hoon. “They’re seeing what can be done and are willing to go further.” Current state proposals and recently enacted laws improve on existing paid leave plans, including the number of weeks offered (six is the average number of weeks offered by states with laws enacted), the percentage of wage replacement, and expanding the definition of family.

Washington state will offer 12 weeks of paid family leave (with options to extend to 16 or 18 weeks depending on circumstances), more than any state currently does, though advocates recommend a parent should spend 26 weeks bonding with a newborn baby for optimal results. (Even the original version of the Family and Medical Leave Act called for up to 26 weeks.) Hawaii is working to expand the definition of family caregiving leave to include siblings and grandparents (who are typically excluded from FMLA protections), and Colorado is one of several states including a higher percentage of wage replacement, particularly for low-wage workers.

States must confront a different set of obstacles to passage and implementation. The first five states to implement paid family leave all had existing temporary disability insurance (TDI) programs and were able to fold new family leave benefits into the existing infrastructure. But many state agencies are not equipped to easily set up their own temporary disability insurance program from scratch.

Both Washington state and the District of Columbia both recently passed their own paid leave laws without a TDI program in place, so both states must now create their own complicated systems. Initially, Washington opted to use the state’s Department of Labor and Industries system to facilitate the fees and payments, but ultimately decided that the financial infrastructure wasn’t sufficient.

“We went to the unemployment insurance program instead,” said state Sen. Karen Keiser, one of the principal authors. “That agency has the ability to contact every employer and set up a payroll tax of some kind. For states that do not have a disability system in place, that is the most probable success for setting up a structure for a paid family program.”

“We’re watching how Washington does it,” said state Rep. Faith Winter of Colorado, a state with an active paid family leave bill but without a TDI system. Colorado passed a paid family leave bill in the state house, though Winter anticipates it will have trouble passing the state Senate. Like Washington, Colorado is a “purple state” of similar size and politics, said Winter. “Sometimes when I talk with people in the middle of the country in a purple state about [paid leave policies in] California or New York, they are not the best example,” said Winter.  But Washington state’s deeply bipartisan efforts resonate.

“Instead of the purely adversarial process where people snipe at each other, this ended up being four months locked in a room where people started to express what interests they were trying to represent,” said Republican state Sen. Joe Fain on the Washington state deliberation process.

Fain credits the closed-door deliberations with “lowering the temperature” of the debate, and the the business community became a willing partner to create the bill. With the business community’s support, the rest of Fain’s caucus followed.

“We were creating a program that would work well for their businesses,” said Fain. “They have been wanting to find ways to offer benefits to their employees but haven’t been able to do so financially.”

State legislators also face different opposition to paid family leave laws than federal legislators do. Chun-Hoon points to the outsized role of corporate lobbyists in federal legislation. While they play a role at the state level too, many business owners support a paid leave plan funded by an insurance pool, since it protects their workers, increases retention, and lowers the individual burden on them to support their workers’ leave out of their own pockets.  Given the overwhelming popularity of such paid leave proposals, local pressures may neutralize a business coalition from speaking out against such plans.

“The Chambers of Commerce in most places are opposed, though many small businesses are fine with it,” said Brianna Cayo Cotter of PL+US, pointing to examples of small businesses willing to testify in paid family leave hearings at the state level. “That is what we’re going to see on paid family leave: members peeling off.”

“There are close to 1.5 million people with new access to paid family leave since 2018 began,” said Cotter. As more people are granted access to paid family leave, either through state laws or through major employers like Walmart and Amazon, expectations begin to shift. Massachusetts will likely see a paid family leave program by 2018’s end, and Connecticut just passed a bipartisan paid family leave bill out of joint committee where it now awaits a floor vote. Hawaii is commissioning a study of how paid family leave could be implemented, setting the stage for a possible floor vote in 2019.

“Every time we run the bill, the policy gains more votes, polls higher, and our coalition grows,” said Winter. Support for the state’s paid leave bill now includes more business associations, such as Good Business Colorado and Small Business Majority, and the support network has widened to include pediatricians, nurses, OB-GYNs, and the state’s Coalition Against Domestic Violence.

Winter is running for a competitive seat which could flip control of the state Senate, with paid family leave as a central tenet of her platform. Despite a crowded Democratic primary for governor, all of the Democratic candidates have pledged support for paid family leave. If she wins her seat, and the state Senate changes to Democratic control, and Colorado elects a Democratic governor (or a GOP one who supports the bill), then paid leave could pass and be signed into law quickly.

It’s a plausible scenario, one with aggressive polling and fundraising numbers to back it up. Change could be coming, even to purple states.