In the United States, the Family and Medical Leave Act (FMLA), enacted in 1993, entitles eligible employees of covered employers to take up to 12 weeks in a 12-month period of unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage. TheFMLA only covers approximately 60% of the workforce due to exemptions for employers with fewer than 50 employees. Leave under FMLA is typically used after the birth of a child or for parents that have newly adopted or received a child in their home for foster care placement. However, FMLA also entitles eligible employees that are suffering from a serious health condition that makes an employee unable to perform the essential functions of his job to take leave and entitles eligible employees to take leave in order to care for a spouse, child or parent with a serious health condition. In other words, it is an important federal protection that provides employees with some peace of mind that their job will remain available if leave must be taken.

There is no federal law that requires private-sector employers to provide paid leave of any kind. For years, paid family leave has been the elusive policy in the United States. In fact, according to data compiled by the Organization for Economic Cooperation and Development (OECD), the United States is the only country among 41 developed nations that does not mandate any paid leave for new parents.

In response to the lack of action by the federal government, a few states have enacted state-mandated paid leave plans, including California, New Jersey, New York, Rhode Island, Washington, D.C. and most recently Washington state. However, recently, the conversation surrounding paid family leave policies has been reignited based on the actions of Congress. On Dec. 11, 2019, the U.S. House of Representatives passed a bill authorizing 12 weeks of paid leave to mothers and fathers of newborns, newly adopted children or foster children. While the paid leave policy was included as part of the National Defense Authorization Act (NDAA), which authorizes spending and lays out policy guidelines for the Pentagon, it passed with overwhelming support.

On Dec. 17, 2019, the bill was approved by the Senate. The president signed the bill into law on Dec. 20. This law is the first update to federal family leave policy in a generation and the first federal law in the United States requiring paid leave. The law will provide paid leave to more than 2.1 million Americans through the nation's largest employer, the federal government. Despite the popularity of paid leave among employees, it still remains a relatively uncommon benefit among employers with a Department of Labor employee benefits survey from March 2019 showing that less than one in five workers obtain the benefit of paid leave. With the enactment of the NDAA, the conversation surrounding paid leave is again at the forefront of the political landscape leading into the 2020 election and could mark a historic shift toward broader paid family leave laws.

Stephanie C. Mazzola is a director with Tripp Scott in Fort Lauderdale and focuses her practice in the areas of complex commercial litigation, labor and employment, construction law and appellate law. Contact her at [email protected].