14 FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE Jennie sWeeT-cusHman Chatham University This paper details the impact of the federal FMLA, as well as the complex web of additional protections many states have. Not all Americans enjoy the same rights to family and medical leave because 40% of them do not live in states that have written additional protections into state law. Pennsylvania is one such state. This paper offers a case study of the policy impact on citizens—particularly women, minorities, and the poor—in Pennsylvania, one of 21 states where lawmakers have not expanded their coverage beyond that of federal law. Since its enactment more than 20 years ago, the Family Medical Leave Act (FMLA) has allowed millions of Americans to maintain job security while they tend to the important needs of their families. However, there are limits to the breadth of the federal law and many states have either subsequently passed their own leave protections that expand coverage in many ways or had pre-existing laws that went further than the federal law. This paper details the impact of the federal FMLA as well as the complex web of additional protections many states have. Critically, not all Americans enjoy the same rights to family and medical leave because 40% of them do not live in states that have written additional protections into state law. Therefore, this paper also offers a case study of the policy impact on citizens—particularly women—in Pennsylvania, one of 21 states where lawmakers have not expanded their coverage beyond that of federal law. Family Medical Leave Laws Signed into law in 1993, the federal Family Medical Leave Act (FMLA) guarantees eligible employees up to 12 weeks of unpaid leave per year for 15 JENNIE SWEET-CUSHMAN health conditions, a new child, or military service. At the conclusion of the approved leave, eligible employees are guaranteed that their job (or one of comparable position) will have been held for their return. Employees that work in a business with more than 50 workers are eligible if they have worked for the company for at least a year, they have worked at least 1,250 hours during the previous year, and if they work at a location with at least 50 employees within a 75-mile radius. This generally means that part-time and self-employed individuals are not likely to be eligible. While these protections are for both men and women, the law was celebrated as being the first national effort to acknowledge maternity leave (albeit unpaid) for women. Prior to passage, 34 states had some version of law that governed family and/or medical leave, though 11 of them applied only to state employees (Commission on Family and Medical Leave 1996). Only 12 states and the District of Columbia had laws that required employers to offer maternity leave (Irwin & Silberman 1993; Waldfogel 1994; Women’s Legal Defense Fund 1993). However, it should be noted that both large and/or unionized workplaces oftentimes had maternity and medical leave policies that were, in some cases, more generous than state law required (Waldfogel 1999). This continues to be the case. Impact of FMLA Following the passage of the FMLA, a series of government and academic studies aimed to determine whether the objectives of the law had been achieved. Three major conclusions were drawn about the effectiveness of the law in allowing workers greater access to job-protected leave. The first conclusion pertained to the number of Americans who became eligible for leave protections under the new law. The Commission on Family and Medical Leave reported that as many as two-thirds of employees were employed by FMLA-covered employers (1996), but this statistic is misleading. Of this number, some employees did not work the required one- year total of 1,250 hours and still others had not been employed for the required one year. Ultimately, perhaps only as few as one-half of workers were eligible (Ruhm 1997). Mothers fared even worse, as far fewer were eligible for maternity leave under the FMLA. It was estimated that 31% of working women of childbearing age had been with their employer the one year required for eligibility and a mere 19% of new mothers met eligibility requirements (Klerman and Leibowitz 1994). Considering the spattering of state laws and private employer policies that granted leave for one reason or another, in some form prior to implementation of the FMLA, it is unlikely that a 16 FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE significant percentage of the workforce suddenly experienced a dramatic new access to protected leave. In fact, only 7% of workers that took a type of leave covered by the FMLA in 1994–1995 reported that they were able to do so by exercising FMLA benefits (Ruhm 1997), the remainder had other benefits they were able to use. Additional findings were discussed following adoption of the law. The second conclusion was that as employers adjusted their benefit packages to bring them in line with the new law, which two-thirds report having done (Waldfogel 2001), they faced little hardship in having done so. The Commission on Family and Medical Leave stated that 90% of covered employers reported that the changes “had no noticeable effect on business performance or growth” (1996, in Ruhm 1997, 181). A survey of employers done in 2000 also reflected these positive reviews (Waldfogel 2001). Waldfogel (1999) estimated that it cost an employer only about $250 per year for each employee that takes leave. Third, the law did increase the frequency of leave taking. The increase was found particularly at medium-sized firms that would have been less likely to have had pre- existing policies, and particularly for new mothers (Waldfogel 1999). An important consequence of the law is that it also institutionalized rights to parental leave, not just maternal leave; under the law men now have the same rights to paternity leave as women do to maternity leave. Another possible positive externality is the effect on women’s employment. Since the 1960s, there has been a steady increase of the number of women who return to the workplace after they have a child. Fifty-five percent of new mothers are back in the workforce within a year of their child’s birth (U.S. Bureau of the Census 2010). In summation, while the FMLA offered a modest expansion of rights for workers, it did provide both more coverage and more usage for working women while imposing negligible costs to employers. Much of the reflection on the law’s early impact argues that this does not amount to a tremendous impact. However, it should be noted that most scholars observe (Ruhm1997; Waldfogel1997; 1999), as did the legislation’s supporters in the 1990s, that the law was not ever designed to be far reaching. The limited scope and strength of the law is a major contributor to the limited impact it had. Where the law had holes or inadequacies in coverage to meet the needs of the contemporary workforces, it was left up to states to compensate in the form of more expansive state laws. More Comprehensive State Laws Today, many of the original state laws that governed workers’ family and medical leave needs before passage of the FMLA are superseded by 17 JENNIE SWEET-CUSHMAN the more comprehensive federal law. Other states have passed laws that add to or expand the protections in the federal law. In addition to the federal FMLA, 29 states have taken steps to expand the coverage for their own workers by adding additional benefits and/or expanding which employees are eligible for protections in their states. Table 1 identifies the additional benefits states have enacted and in which states these more expansive laws apply. Table 1 Additional Leave Protections in Current State Law by Type and State Type of Expansion Expansion States Application to smaller employers (fewer than 50 employees) DC, ME, OR, VT (family leave) CA, IL, ME, NE, NY, OR, RI (military leave) CA, CT, IA, LA, NH, WA (maternity leave) CA, MN, NC, VT (small necessities leave) Broader, more-inclusive definition of “family” CA, CT, DC, HI, ME, NJ, OR, RI, TN, VT, WA, WI Additional military protections CA, CT, IL, IN, ME, MN, NE, NY, OH, OR, RI, WA Pregnancy as specific disability CA, CT, HI, IA, LA, MT, NH, WA “Small necessities” allowances CA, CO, DC, IL, LA, MA, MN, NV, NC, RI, VT Domestic violence coverage CA, CO, FL, HI, IL, ME, NM, NC, OR, WA Temporary disabilities CA, NJ, NY, RI Paid sick leave CT, DC Adoptive parents CO, KY, MD, MA, MN, NE, NY, VT, WI Compiled from www.nolo.com (2014) While each state that has enacted more comprehensive legislation has a different formula for what is covered and for whom, there are some general categories in which state laws have become more comprehensive than federal law. These categories are discussed below. 18 FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE Definition of Family In some states, what constitutes a family is redefined by including domestic partnerships, children of domestic partnerships, grandparents, or in-laws. In Washington, D.C., which has the most inclusive definition, “family members include parents, spouses, children, domestic partners, parents-in-law, grandchildren, children’s spouses, siblings, siblings’ spouses, children with whom the employee lives and whom the employee has responsibility for, and a person with whom the employee shares a residence and committed relationship” (District of Columbia 1990). In New Jersey, which also passed a FMLA in 1993 (NJFLA), the definition of eligible immediate family coincides with the federal definition, but extends it slightly to include a spouse’s parents (State of New Jersey n.d.). These states also have more flexible options when it comes to company size and leave availability. Additional Military Benefits Leave in the case of having a loved one on active duty is only available in 12 states, the most inclusive being Minnesota where if the employee’s grandparent, parent, legal guardian, sibling, child, grandchild, spouse, or fiancé is being deployed or coming back from deployment, or if they have been injured while deployed, they are entitled to limited leave. Other states, such as Maine, entitle domestic partners to leave. Some set limits on how many days of leave are permitted depending on the length of the deployment (it usually has to be over 90 days) (nolo.com). Pregnancy as Specific Disability Legislation regarding disability due to pregnancy is generally vague. States such as Connecticut, Hawaii, or Montana give “reasonable” leave due to pregnancy, while other states put a time limit on length of leave, commonly over at least three weeks. Recognizing pregnancy in itself as a disability has been a contentious issue since 1976 when the Supreme Court ruled in General Electric Co. v. Gilbert that discrimination on the basis of pregnancy alone did not equate to discrimination based on sex and was, therefore, not necessarily illegal. Congress responded in 1978 with The Pregnancy Discrimination Act (PDA), but the law has limitations when it comes to accommodations pregnant workers may need to continue working. National Public Radio recently reported that The Equal Employment Opportunity Commission has received 46% more pregnancy-related complaints over the last 14 years (National Public Radio 2014). The Philadelphia EEOC district office (which includes coverage of the entire state of Pennsylvania) 19 JENNIE SWEET-CUSHMAN registered more than 300 complaints in that time period—second only to the Miami district office (United States Equal Employment Opportunity Commission 2014). As a result of the increased claims, the commission issued a detailed clarification of how the PDA should be applied in cases of disability and other issues of leave in July 2014 (EEOC 2014). Small Necessities Some states offer their employees with children a few hours per year of unpaid leave for parent/teacher conferences or even for involvement in their children’s schools. Domestic Violence Coverage Employees of certain states are allowed some unpaid leave to get social, family, and medical services, such as medical or legal assistance, or enhance the security of their homes after a violent assault. Maine and Washington employers are required to grant leave to employees who have a family member that has been attacked (nolo.com). Temporary Disability California, New Jersey, New York, and Rhode Island have Temporary Disability Insurance and Paid Family Leave that entitles employees to a percentage of their wages, previously withheld from their paychecks through payroll deduction, much like unemployment insurance. Paid Sick Leave Connecticut and the District of Columbia offer paid sick leave dependent on how many employees a company has and how many hours the employee has worked. In D.C., this leave also includes domestic violence or family leave. Leave for Adoptive Parents While recent interpretations of federal law recognize adoptive and other caretaking scenarios as parenting relationships covered by FMLA (U.S. Department of Labor 2010), these protections are not extended to employers who are not required to offer protections or private companies that offer their own set of benefits that go above and beyond. However, some states award adoptive parents the same rights to leave as birth parents in all cases, as long as the company offers parental leave to biological parents. 20 FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE Some states, namely New York and Nebraska, make provisions regarding the child’s age. No state extends these additional benefits to step or foster parents. Family Medical Leave in Pennsylvania Twenty-one states offer no additional family-leave protections. Pennsylvania is one of the more populous of these states. Because there are currently no additional rights other than those afforded by the federal law, many of the state’s working women and their families have fewer protections than their peers in many other states. Paid Leave The largest disadvantage Pennsylvanians have is that state law does not mandate that private employers provide paid leave for its employees. While many private employers and municipalities do offer paid sick, family, and/or parental1 leave (United States Bureau of Labor Statistics 2013), they are not required to do so by federal or state law. So, while workers may be eligible for leave under FMLA, exercising it may be limited by financial considerations. Indeed, research shows that leave is much less-exercised by women with lower levels of education or women who are single parents (Han, Ruhm, and Woldfogel 2009). Take into consideration the 24% of Pennsylvania families with household income that is below 200% of the Federal Poverty Level (FPL)2 (Pathways PA 2009). Many of these families (21%) have at least one parent with a low level of education, making it difficult for them to secure jobs with wages high enough to make ends meet. Lower-income jobs, such as health care aids, retail or fast food workers, and child care providers, are disproportionately held by women. In fact, Corporation for Enterprise Development recently reported that 21% of Pennsylvanians face “asset poverty,” meaning they would not have the resources to survive for up to three months of sustained loss of income. Single women are 40% more likely than single men to be asset poor in Pennsylvania—which is a greater disparity than most states (Corporation for Enterprise Development 2014). For individuals and families who are living paycheck-to-paycheck, any reduction in household income caused by an unpaid leave can seriously affect already precarious household budgets. Taking an unpaid leave simply is not a viable financial option. The City of Philadelphia passed a law in 2011 that required city contractors to allow their workers to accrue paid sick leave. A strong effort in 2013 to expand this requirement to all private city employers with more than five employees fell just short of passage when Mayor Michael Nutter 21 JENNIE SWEET-CUSHMAN vetoed the legislation, which had passed the city’s council by a vote of 11-6 (National Partnership for Women and Families 2014). Nonetheless, the efforts prompted 17 members of the Pennsylvania General Assembly to introduce House Bill 1807, The Leave Policy Act, which would prohibit “political subunits” in the state from enacting legislation requiring private employers to offer paid leave of any kind (Pennsylvania General Assembly 2013). The bill was referred to the full House by the Labor and Industry Committee in February 2014, but has not been voted on—likely because the 2014 election of Democrat Tom Wolf would mean the measure would face a veto. Adult Caregivers For many working women, it is not only their own health or the birth of a child that requires them to weigh their options for being off work. Increasingly, adult children are faced with providing care for aging parents. According to the Pennsylvania Department of Aging, there are 1.3 million “informal caregivers” in the state who invest 1.4 billion hours of unpaid time in caring for the elderly in the state (2013). Historically, this burden has fallen on the adult daughters (and presumably daughters-in-law) of the aging individual who needs care (Smith 2004), many of whom are still in the process of caring for their own children’s needs. According to Dr. Lynn Martire and her colleagues of the University of Pittsburgh’s department of psychiatry, this burden is not just financial, but psychological as well. This dual demand on working women exacerbates stress-related depression, especially as it complicates their other roles as employees, wives, and mothers (2000). The State offers some help with the financial burden with a means- tested program—The Pennsylvania Caregiver Support Program—that reimburses qualified applicants for some of the expenses associated with caretaking. Eligibility for the program is income-based and uses a sliding scale cost sharing approach that may reimburse caretakers up to $500 a month for expenses such as uncovered medical costs or up to $2000 for home renovations (Pennsylvania Department of Aging 2014). Governor Corbett’s 2014–2015 budget proposal requested over $40 million in additional funds for programs for the state’s elderly (Pennsylvania Department of Aging 2014), but it is not clear how much, if any, of those funds will be directed into The Caregiver Program. Presently, the program is aiding only around 7,000 caretakers, and not all of them are eligible for financial support, but rather counseling or referral services. A decision, then, to take unpaid time off under the FMLA to care for an aging parent, can mean financial hardship in precisely the same way faced by new parents or those with personal or immediate family medical needs. 22 FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE Small Necessities Not all the demands on working mothers are long term or overly significant. Several states recognize that working parents have smaller needs that require their attention during work hours, like parent teacher conferences and regular trips to the pediatrician. Often referred to as a “small necessities” law, a bill that would have protected a worker’s right to a handful of hours leave time to attend to these things was recently introduced in Pennsylvania. HB1673, The Parental Involvement Leave Act was introduced in 2013 to “[provide] Statewide uniformity regarding vacation and other forms of leave mandated by political subdivisions, for parental involvement leave and for civil remedies.” The legislation was referred the House Labor and Industry Committee but has not come up for any votes. The legislation’s original prime sponsor, Dan Miller (D-Allegheny) has since withdrawn his original sponsorship, but in August, 2013, wrote his colleagues to encourage them to support the legislation’s goal of enhancing parental involvement in their children’s school by requiring Pennsylvania employers guarantee parents paid leave time to attend parent-teacher conferences and other related functions (Pennsylvania General Assembly 2014a). Miller reintroduced the legislation in the 2015–2016 term as HB 849, picking up 19 cosponsors, but with no Republicans among them, the bill seems unlikely to have much success in the Republican-controlled legislature (Pennsylvania General Assembly 2015). This type of legislation generally only provides a few hours per year for worker’s to access protected leave, and it is exclusively unpaid. It does allow parents to participate in important events in their children’s lives. Definition of Family Many Pennsylvanians are also limited in their access to FMLA protections by the law’s narrow definition of “family.” The Obama Administration has expanded the interpretation of the law to include coverage for same-sex parents of children that lack a biological relationship with the child (U.S. Department of Labor 2010). This extension of the law should serve to directly impact the potential for job-protected parental leave for parents in Pennsylvania’s estimated 24,481 same-sex households (U.S. Department of Commerce 2012). The Supreme Court struck down the Defense of Marriage Act (1996) in their 2013 ruling on United States v. Windsor, which had—in part—prevented the extension of federal benefits to individuals in same- sex marriages. For now, this means that FMLA protections are extended to couples with marriages that are legally-recognized in the state in which they work (Department of Labor 2013), though there is an expectation that the ruling will ultimately extend federal protections to all legally-married 23 JENNIE SWEET-CUSHMAN couples regardless of their state of residence or work. It is also presumed that many of these protections will be extended to Pennsylvanians in same- sex unions since the May 2014 legal decision3 that made same-sex marriage legal in the state. What is less clear is how the limited definition of family will apply to same-sex couples as the interpretation of the law expands because there is no state law prohibiting workplace discrimination. Void of a more inclusive state law, committed couples or couples with marriages performed in other states will fail to have protections that extend to family members other than a spouse or children (e.g., in-laws, grandchildren, siblings). Military Some states’ laws recognize a family member’s military deployment as a “condition” sufficient for granting leave, known as a “qualifying exigency.” A member of the Armed Forces’ (to include the National Guard and Reserves) spouse, parents, or children (of any age) would be entitled to this leave under certain conditions requiring their absence from work (e.g., child or parent care, post-deployment activities) (U.S. Department of Labor 2013). Pennsylvania’s more than 56,000 military personnel (Department of Defense 2014) were only given this recognition by a federal expansion of FMLA that took effect in early 2013 (Department of Labor n.d.). The state’s thousands of Iraq and Afghan War veterans would not have been covered under this expansion. Also, despite the Obama Administration’s 2010 repeal of the Don’t Ask, Don’t Tell (DADT) policy, same-sex spouses or partners as well as extended family of deploying military personnel continue to have no guaranteed right to leave, particularly in states that do not recognize these unions. Some Pennsylvania military families who fall through this particular crack might be helped by a state program run through the state’s Department of Military and Veterans Affairs. Using both public funds and private donations, The Military Family Relief Assistance Program (MFRAP) offers grants of up to $3,500 to qualifying service members or family members to help with costs associated with hardships due to deployment4—including child care and other loss of employment income (Pennsylvania Department of Military and Veterans Affairs 2014). However, MFRAP is a small program and awarded only $104,000 to 33 approved applications in 20125, very few of which described circumstances that would have been governed by an expanded FMLA (Pennsylvania Department of Military and Veterans Affairs 2103). Veteran support groups in the nonprofit sector also offer services that presumably could help families struggling with leave-related issues. 24 FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE Domestic Violence and Sexual Assault According to the National Network to End Domestic Violence, an average of more than 2,400 adults and children receive services for domestic violence (e.g., shelter, counseling) in Pennsylvania each day and there are, on average, 33 calls to hotlines every hour (National Network to End Domestic Violence 2013). These statistics are only a portion of individuals coping with domestic violence as they do not reflect victims that do not seek outside help. In 2013, an additional 30,000 Pennsylvanians sought help as victims of sexual violence (Pennsylvania Coalition Against Rape 2013). Again, many of these crimes go unreported and/or victims do not actively seek support in their recovery. In their lifetimes, one in four women will experience domestic violence (Pennsylvania Coalition Against Domestic Violence 2013), and one in three will be exposed to sexual abuse of some kind (WOAR n.d.). These victims of both domestic violence and sexual assault face discrimination and problems obtaining needed time off in their jobs (Swanberg, Ojha, and Macke 2012; Brownmiller 2013). Pennsylvania’s employers are required to provide potentially critical workplace safety under the Occupational Safety and Health Act of 1970 (OSHA), and employees would qualify for leave under FMLA if their absence would be to seek medical treatment for or to recuperate from injuries due to an incidence of domestic violence or sexual assault. State statutes also provide work leave for a related subpoena or court appearance (Swanberg, Ojha, and Macke 2012). However, victims of both domestic and sexual violence face far more than physical wounds they may have received in these attacks. Scholars who study the aftermath for victims of these crimes describe a long list of psychological concerns, as well—including post-traumatic stress disorder (PTSD), anxiety, insomnia, anger, self-harm, and high rates of depression (Armour et al., 2013; Humphreys and Thiara 2003). There are also more practical considerations, like victims needing to find a new place to live and, in some cases, establishing credit in their own names. These scenarios and others demonstrate how crucial the need to maintain employment can be to future empowerment of the victim. According to the Pennsylvania Coalition Against Domestic Violence (2014), while the state legislature is considering several pieces of legislation that support victims in other ways (e.g., laws to strength protection for children in environments of abuse), there is currently no legislation being considered in the state that would offer greater or more expansive employment protection for victims of either domestic or sexual violence. As a result, the vast majority of Pennsylvanians have no leave protections under these dire circumstances. However, employees within the city of 25 JENNIE SWEET-CUSHMAN Philadelphia do have additional protections that were passed by the City Council and took effect in 2009. The ordinance provides up to eight weeks6 of unpaid leave to workers of any Philadelphia employer7 who are victims of not only domestic or sexual violence, but also stalking. The ordinance allows an employee to take time off to tend to physical or psychological injuries, seek help from a domestic or sexual violence organization, receive counseling, relocate, or seek legal assistance for themselves or a member of their immediate family (City of Philadelphia 2009). However, there is some concern that this ordinance will be overturned by legislation passed by the state House of Representatives in March 2014 (H.B. 1796) that would prohibit municipalities from requiring certain benefit mandates from private employers (Pennsylvania General Assembly 2014c) similar to The Leave Policy Act mentioned above. When the General Assembly recessed in July 2014, H.B. 1796 was still under consideration in the senate, but no action had been taken. Temporary Disability and Pregnancy The Social Security Administration provides income replacement to workers who become disabled or ill and are not able to work for 12 months or more (Social Security Administration 2012). Shorter-term leave needs would be (for those covered) governed by FMLA, but would be unpaid unless the employer offers additional benefits or the absence is covered under a state or municipal statute that offers paid time off for short-term needs. Many employers do offer short-term disability insurance programs that serve this function. The important distinction is, however, that while these insurance programs will provide compensation, they do not offer job protection. While most states have statutes that extend the FMLA job protection to short-term disabilities, Pennsylvania does not (J. A. Gallagher, personal communication, May 5, 20148). Theoretically an employee in Pennsylvania could be approved for short-term disability payments through the insurance program they participate in but lose his or her job while on leave. A few states (e.g., California, New York) have incorporated a paid leave component into their state leave laws that requires employee contributions to a short-term disability program, effectively removing any additional burden from employers because the funds come from employees not employers. Examples from the handful of states that have implemented these programs indicate that employees take the leave they need more often and for longer duration because they are receiving compensation when they do. In California, for example, single mothers are among the biggest beneficiaries of this program (Koss 2003). Short-term disability issues are particularly complex in the context of a pregnancy and the issue remains unresolved in states, like Pennsylvania, that 26 FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE have not made clear statutes defining pregnancy as a disability. According to legal scholar Jeanette Cox, recent expansions of the Americans with Disabilities Act (ADA) have allowed for more conditions that may be concomitant with pregnancy—like shortness of breath or back pain— to be protected under the law (and thus recognized by FMLA, as well). However, courts continue to bar extension of FMLA protection to pregnant workers suffering from ADA-recognized disabilities because pregnancy is not recognized as being a condition from which disabilities can stem. As Cox states, “the primary remaining justification for concluding that pregnant workers may not obtain ADA accommodations is that pregnancy is a physically healthy condition rather than a physiological defect (2012).” Pennsylvania has been named one of the 10 worst states in the country for pregnancy discrimination (National Partnership for Women and Families 2008). Without specific state law that defines pregnancy as a disability, expectant mothers in Pennsylvania who are in some way limited from performing their job responsibilities by side effects of normal pregnancies cannot receive reasonable accommodation under the ADA or exercise FMLA rights. Without either of these protections, these women face potential repercussions by their employers when their job performances are affected. As a result, The National Women’s Law Center reports that many women are either forced to take a reduction in hours without pay, quit, or are fired from their jobs when employers refuse to make even small accommodations that are extended to disabled workers9. Even when nondisability conditions associated with pregnancy are recognized, employers may insist employees take FMLA leave intermittently. Considering the law allows for only 12 weeks of protected leave, leaves during pregnancy can erode the amount of time available to a new mother once her baby is born (NWLC 2013). In 2014, the Philadelphia City Council voted to amend the Philadelphia Fair Practices Ordinance of 2013 to include protections for pregnant workers in the city that require city employers to make reasonable accommodations (Council of the City of Philadelphia 2014). Testimony in support of the amendment drew attention to the fact that 53% of Philadelphia children are being raised by single working mothers, women who could not afford to suffer job and income loss because of pregnancy (Council of the City of Philadelphia 2013). Rep. Mark Painter (D-Montgomery) introduced H.B. 1892, The Pennsylvania Pregnant Workers Fairness Act, in February 2014. The legislation is designed to eliminate discrimination and ensure reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy. The bill was referred to the Labor and Industry Committee, but no further action has been taken (Pennsylvania General Assembly 2014b). 27 JENNIE SWEET-CUSHMAN Conclusion and Policy Prescriptions In conclusion, it is obvious that Pennsylvania’s leave laws and supporting statutes provide some of the nation’s most meager protections for workers. In the 20 years since the passage of the federal FMLA, a majority of states and municipalities around the country have expanded the law’s scope with statutes of their own. Regrettably, in nearly every way, other states have chosen to expand FMLA to offer additional rights and protections for their citizens; Pennsylvania has not. In recent years, it is the state’s political climate that can be blamed for inaction. The Democratic minority in the general assembly continues to introduce legislation that would expand leave, but such legislation has received virtually no Republican support. To this point, increased partisan polarization makes compromise unlikely on even modest expansions, let alone more dramatic proposals such as a paid leave policy for the state. However, one need only look to neighboring New Jersey to identify a much more worker-sensitive environment. Two large cities in the state— Newark and Jersey City—passed municipal laws that would mandate employers to allow employees to accrue paid days off. East Orange is considering a similar measure, and five municipalities passed citizen- initiated ballot measures in fall 2014 that require employers to facilitate paid time off in their communities. The Associated Press reports that, as a result, New Jersey lawmakers are seriously considering legislation that would make the requirement apply to the entire state, and there appears to be enough support in the legislature to accomplish it (Mulvihill 2014). The state’s governor, Governor Chris Christie, however has expressed his reluctance to require businesses to provide paid time off to employees in the state, despite opinion polls that show more than 80% of citizens support government-mandated paid sick time (Dawsey 2015). Meanwhile, Pennsylvania has taken no action. This inaction has created a work environment in the state that is less protective of workers than those in many other states. Most significant, this analysis finds that these gaps in protection and rights are most obvious and under-coverage has the biggest impact for the state’s most vulnerable citizens. For example, this report identifies how low-income families, single parents, and individuals living on meager budgets cannot afford to take unpaid leave. Employees straining under the burden of caring for elderly loved ones (and perhaps children concurrently) have far too many limitations in their leave options. Victims of domestic or sexual violence, face further hardships in trying to manage serious needs that arise out of their victimization when it puts their jobs in jeopardy. Pregnant women can still be discriminated against when their pregnancy affects their job performance. Pennsylvania can and should do better. 28 FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE The following four recommendations for prudent action could make Pennsylvania a more hospitable place to work: Action by Municipalities, Leadership from the Private Sector, Support from the Nonprofit Community, and Expansion of State Laws. Policy Prescription 1: Municipal Opportunity One way expansions of leave laws have taken place in Pennsylvania, despite inaction by the state legislature, is the enactment of policy at the local level. Philadelphia and Pittsburgh10 (as well as Allegheny County), the state’s most populous cities, have recently instituted numerous policies that give workers who are employed within the city more access to and more expansive leave rights. While there are political forces at work against continuing to allow municipalities to enact these types of locally-applied ordinances, it remains an option for other communities that want to improve leave options in their jurisdiction. In municipalities where significant political support for progressive protections for workers exist, an effort to address these types of issues on their governing councils could certainly be tackled. Even smaller municipalities may see prudence in protecting the quality of their local government work forces by improving benefits that local government employees and/or contractors receive—a move that would be entirely within a local governing body’s authority. Of course a community-by-community expansion of leave offers no comprehensive solution for workers who continue to fall through the cracks in the federal law, but developments in population-dense areas where a majority of jobs are could greatly expand the number of Pennsylvanians who could enjoy the same protections as those who live in states with more comprehensive laws. Policy Prescription 2: Role for Private Sector A frequent argument made by the state’s conservatives regarding state regulation of employment policies is that telling private businesses how to run their businesses can limit economic growth and is not an appropriate role for state legislators. Where state laws fall short, then, private companies are left to make decisions on what type of leave policies they will offer their employees. Responsible employers should and often do recognize that offering their employees access to the leave they need has the potential to decrease employee turnover and resources needed for training new employees, as well as a happy, healthy, and loyal workforce (Grover and Krooker 1995; Batt and Valcour 2003). 29 JENNIE SWEET-CUSHMAN As Grover and Krooker (1995) found, “(E)mployees who had access to family-responsive policies showed significantly greater organizational commitment and expressed significantly lower intention to quit their jobs (271).” Studies following the implementation of the federal FMLA also indicated that the cost of implementing (and employees exercising) leave policies is small. Because it can make good business sense, employers, from small to large and regardless of industry, should feel compelled to revisit their existing leave policies and consider expanding their benefits in perhaps small but significant ways that could improve the lives of their employees and create a culture of greater work-life balance in their industry. Even a slightly expanded leave policy could mean a great deal to workers faced with a personal need that prompts a tough choice about how to juggle their employment and the health and safety of themselves and their loved ones. Policy Prescription 3: Need for Nonprofit Advocacy and Support In reality, political will and corporate motivation to expand workers’ access to leave may require significant social pressure and targeted advocacy. A coordinated effort among organizations with missions that recognize the needs of workers, women, parents, families, children, the working poor, victims of domestic and sexual violence, and others could draw hereto unseen attention to the implications of the minimal protections Pennsylvanian workers have compared to workers in other states. A campaign that united these diverse but influential advocacy sectors behind an effort to expand state or local leave laws could be effective in a way that individual organizations (that have merely touched on some of these needs in their reform priorities) have not been. A larger, more expansive effort could draw attention to the vast opportunities lawmakers and employers have to improve working conditions in the state. In the absence of expanded laws, many nonprofit organizations may also need to examine how they might develop programs that meet the needs of workers who have legal, personal, or financial hardships in the face of tough decisions about how to manage their leave needs. The nonprofit community is uniquely skilled at developing education and service programs that address many of the problems created by inadequate leave laws, as well as partnering with private corporations to meet many of these needs. There are many considerations the nonprofit community could begin to make if there were an effort to more specifically address issues of leave in the state. 30 FMLA IN PA: ANALYSIS OF FAMILY AND MEDICAL LEAVE POLICY IN THE STATE Policy Prescription 4: Action by State Legislature Finally and most significant, without changes in state law and even with ad hoc policy changes at other levels, many Pennsylvanians will continue to face inadequate protection under federal laws. As has been outlined in this report, this disproportionately disadvantages many of the state’s most vulnerable populations (see Table 2). Lawmakers should examine prudent means of comprehensively extending additional protections to the state’s workers—with a specific examination of viable legislative options in the state. The newly-created, bicameral, and bipartisan Women’s Health Caucus in the General Assembly seems a likely starting point for this endeavor. Table 2 Implications for Under-Covered Groups Under Pennsylvania Law Under-Covered Groups Under Pennsylvania Law Low-income families Leave requires financial hardship Parents No leave for nonmedical needs, narrow options for adult caregiving leave The Disabled Private insurance programs do not protect jobs Military Families Families of recently-deployed veterans had few leave options LGBT Families State law has limited recognition of nontraditional families in application of existing law Pregnant Women Employers can force leave or terminate instead of making reasonable accommodations Victims of Domestic/Sexual Violence Justification for leave may not meet needs of victims All Pennsylvanians Scope, availability, justifications for, and ease of taking leave more limited than other states The Caucus revealed The Pennsylvania Agenda for Women’s Health in December 2013 and has since introduced bipartisan legislation that addresses women’s health, safety, and financial security in the state. One of the group’s initiatives is H.B. 1892, The Pennsylvania Pregnant Workers Fairness Act, which addresses issues of pregnancy discrimination and accommodation discussed in this report. None of the other agenda items directly deals with issues of family or medical leave, but these issues are distinctly in the spirit of the caucus’s mission. 31 JENNIE SWEET-CUSHMAN In particular, the legislature and the governor should consider options for extending paid leave to millions of Pennsylvanians that have none whatsoever through their employers. Many, many states have recognized the limitations of the federal law and have acted in important ways through state statute to strengthen the options available to workers. Doing so in Pennsylvania would give working women and their families, as well as working men, greater flexibility to manage their health, the health of their families, as well as unforeseen emergencies that can happen to any Pennsylvanian. In doing so, quality of life and work environment could be improved for all workers in the state, regardless of their economic or family status, or gender. This has been successfully done in many other states as the modest federal FMLA law provoked state legislatures to fill in the gaps. As such, it seems reasonable to expect that with the right political attention, some moderate expansion of leave laws in Pennsylvania could be possible. Notes 1 Frequently only maternity leave, but employers are increasingly offering new parents—regardless of gender—some form of paid leave. 2 $40,000 for a family of four (Pathways PA, 2009). 3 Whitewood v. Wolf; Palladino v. Corbett 4 The grants are also awarded for several circumstances other than deployment, which would not be covered by family leave laws. 5 The most recent year for which data is available. 6 Employers with more than 50 employees must provide up to eight weeks of leave, while those with fewer than 50 are required to provide up to four weeks. 7 Regardless of whether the employer is subject to FMLA. 8 John Gallagher is a Pennsylvania disability attorney. 9 In March 2015, the U.S. Supreme Court set an important precedent that pregnant women have some right to pregnancy-related accommodation in Young v. United Parcel Service. Presumably if pregnant workers are more easily able to get accommodations from their employers, fewer will need to take leave during their pregnancy. 10 According to Pittsburgh City Councilwoman Natalia Rudiak (personal communication, March 17, 2015), the city could only offer paid leave to city employees because legal precedent prevents Council from requiring it be offered by employers within the city. References Armour, Cherie, Ask Elklit, Dean Lauterbach, and Jon D. Elhai. 2014. “The DSM-5 dissociative-PTSD subtype: Can Levels of Depression, Anxiety, Hostility, and Sleeping Difficulties Differentiate Between Dissociative-PTSD and PTSD in Rape Victims?” Journal of Anxiety Disorders 28(4):418–426. Batt, Rosemary, and P. Monique Valcour. 2003. “Human Resources Practices as Predictors of Work‐Family Outcomes and Employee Turnover.” Industrial Relations 42(2):189–220. Brownmiller, Susan. 2013. Against Our Will: Men, Women and Rape. 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