Congress Failed To Pass Paid Family Leave. Now It Could Be On The Ballot

On weekend mornings this fall, when Maine residents head to the farmer’s market or their children’s little league games, they may be confronted by advocates wanting to talk to them about paid family leave. In July, a coalition seeking to put a question on next year’s ballot to ensure all residents can take 16 paid weeks off for a new baby, a serious illness, in the case of military service or domestic violence, or to care for a disabled or sick family member started fanning out with clipboards to collect enough signatures.

Being approached about a ballot campaign is nothing out of the ordinary for Mainers — there’s usually at least a couple of questions proposed each year. “Folks are very used to somebody approaching you with a petition,” said Bridget Surber, field strategy director at the Maine People’s Alliance, who has worked on a number of these campaigns. But this one is different than most, when people sign with little fanfare. People are getting legitimately excited. “People actually smile and light up for a second,” she said. “People feel good when they get to sign it.”

This time last year, advocates for paid family leave were fairly confident that the United States would finally pass a program, joining most of the rest of the world. Democrats had promised to include it in their reconciliation legislative package that became known as Build Back Better. But then conservative Democrat Senator Joe Manchin (WV) objected, and the provision was one of the first to be stripped out during negotiations last fall. When Democrats finally passed a reconciliation package this year, the Inflation Reduction Act included significant investments in climate change mitigation and healthcare affordability, but paid leave didn’t make the cut.

Yet in the months since it was cut from Build Back Better, activists have pushed legislation at the state, instead of federal, level with a renewed urgency. Earlier this year, Maryland and Delaware each passed paid leave laws after years of activist effort. Other states are working on similar efforts. In some cases, whether or not they succeed will depend on what happens in November’s state legislative elections. But in Maine, activists are taking matters into their own hands by attempting to get paid leave on the ballot in 2023 for voters to weigh in on directly.

“It’s just not happening fast enough,” Surber said. The lack of action on the federal level underscored the importance of getting her state to join the short, but growing, list of others who have done it themselves. “Let’s be one of the states who show this can happen,” she said.

Her coalition’s army of organizers and volunteers have spent the last year knocking on doors, talking to over 10,000 Maine voters. People have been opening up about their own needs for paid family leave, the parents who had to be back at work just weeks after welcoming a new baby or the children who couldn’t get time off of work to help an elderly parent go through a surgery. Maine has the largest share of people over age 65 in the country, leaving many families trying to figure out how to care for them.

The coalition’s volunteers are made up of a cross section of Mainers. There are the die-hard campaigners who have volunteered for multiple ballot initiatives, typically older and retired. But a lot of parents have also gotten involved, as have college students on their campuses. Surber noted that it wasn’t typical for students to get involved in ballot campaigns. “I don’t think we can underestimate the impact that COVID had on that generation,” she noted. “They either had someone in their family who got sick, or know someone who did.” Which may have, in turn, forced them to think about caregiving much earlier than other generations.

Advocates have until mid-January to get a little more than 63,000 signatures submitted to the secretary of state to get the issue on 2023’s November ballot, but Surber estimates that they’ll have enough by December. “It’s one of those issues that kind of crosses all those lines,” she said. People of all incomes, backgrounds, and political persuasions are just as likely to find themselves in need of paid time off of work to care for themselves or their families.

After defeat in Congress, paid leave advocates have turned their attention to state action. “It was such a frustrating experience trying to do this at the federal level,” said Sherry Leiwant, co-founder of A Better Balance, which advocates for paid family leave. “We’re pivoting at this point to the states.”

Many seem ready to heed the call. The pandemic opened people’s eyes to the need to keep earning a living when health issues make it impossible to work. And now without a federal bill they feel more urgency to act. “There is a ton of motion in the states,” said Sammy Chavin, federal policy coordinator for Family Values @ Work.

In Maryland, a task force on paid family leave released a report in 2017, and legislation was introduced in 2019, 2020, and 2021. But it wasn’t until this year that it finally became law, when Democratic state lawmakers overrode Governor Larry Hogan’s veto on April 9. “It’s been a long slog,” said Clinton Macsherry, director of public policy at Maryland Family Network. But the pandemic made lawmakers “highly sensitized” to the issue, he said, and made it clear they needed to act.

Delaware’s new law passed just days later, on April 15. There the effort moved much faster. Sarah McBride put paid family leave squarely at the core of her 2019 campaign for state senate. Her passion for the issue stems from direct experience: in 2013 her then-boyfriend was diagnosed with cancer and both of them were able to use paid family leave to take time off from work for his treatments and recovery. When the cancer became terminal, she was able to take leave to care for her husband in the last weeks of his life. “I know how lucky we were,” she said. But she also knows that “for far too many people, that policy, that benefit is out of reach.”

She took office in 2020, and the pandemic only furthered her efforts. “The cruelty of forcing anyone to give up their income in the face of an illness or any macro life event came into stark relief,” she said. “People began to recognize that if this is necessary for COVID, then it’s also necessary for cancer.” Then when paid family leave was removed from congressional Democrats’ reconciliation package in late 2021 it “really supercharged the conversation,” she said. “That moment was an inflection point.”

The two states passing laws within weeks of each other “demonstrates that there is nationwide momentum,” McBride said. After Maryland passed its law, Macsherry and his fellow advocates started getting calls from people in other states looking to follow suit. “I’d venture a guess that there are at least another half dozen states that are actively considering legislation in the coming session,” he said.

One of them is Vermont. When paid leave was stripped from Democrats’ reconciliation negotiations, the state quickly pivoted in 2022 to using American Rescue Funds to enact paid COVID leave through mid-2023. With that accomplished, advocates in the state are focused on enacting paid family leave on a permanent basis next year. Bills were introduced in both 2019 and 2020, but now the COVID paid leave program has brought “a little more attention to the issue,” Chavin said.

Last year, New Mexico passed a strong paid sick days law, bringing such a policy to a western, purple state. After years of conservative Democrats controlling the state’s senate, advocates helped elect a more progressive slate in 2020, making such a policy possible. The state has now convened a task force to develop recommendations on establishing a paid family leave program in the state, and a report is due to the governor and legislature on October 1. Lawmakers could act shortly after.

Campaigns in other states will depend on the outcome of the upcoming elections in November. Democrats in Minnesota, for example, have been trying to pass paid family leave for years, and Governor Tim Walz supports it. But they’ve been continually stymied by a Republican-controlled state senate. “They can’t do it unless they flip the senate,” Leiwant said. If that were to happen, a strong bill is ready to go. “Everybody in the legislature is aware of it,” Leiwant said. “It’s just been percolating there for such a long time.”

Even a deep red state like Louisiana could get in on the action. It also convened a commission, which issued a report in February with recommendations should the legislature decide to implement a paid family program, noting, “If the state Legislature choses to adopt such a program, Louisiana would be added to a growing list of states.”

Next year, that list may very well include Maine. The Maine Women’s Lobby has been working on paid family leave since the 1980s, when the state became one of the first to pass unpaid family leave. But the current coalition, which includes 33 member organizations as large as the Maine Education Association and AARP down to local breastfeeding advocates, have been working on the issue for about three years. In October 2021, the state formed a commission to study how to make a paid leave program in the state and present a plan, which is due in early November. The hope is that the report’s release will prompt the legislature to pass its own legislation when the session begins in January.

But by then the legislature will look very different — every seat and the governorship are up for election in November. So the ballot measure is a form of insurance against lawmaker inaction. “We don’t intend for a ballot to be a threat or to derail a legislative process,” said Destie Hohman Sprague, executive director of the Maine Women’s Lobby. “We are setting up the processes we need…to make sure that this happens for Maine.” Legislation would save advocates the time and expense of running a ballot campaign, and it would also ensure that lawmakers are committed to implementing and funding it.

But if lawmakers fail to act, advocates are prepared to follow through on the measure, and they think they can win. “Mainers like to be able to make things happen themselves,” Surber said.

Even some states that have already enacted paid family leave programs are working on improving them. This year the California state legislature passed a bill ensuring that workers can expect 90 percent of their normal pay while on leave, financed by removing a cap on employee contributions over $146,000. Because Californians can only currently expect between 60 and 70 percent of their pay, low-wage workers are far less likely to take leave because they can’t afford it. “They’re paying and paying and paying [into the system] but they’re unable to take advantage,” said State Senator Maria Elena Durazo, who introduced the bill. It’s currently waiting for Governor Gavin Newsom’s signature. “I see no reason for him not to sign it,” Durazo said. Meanwhile, Washington, D.C. expanded benefits to 12 weeks for all reasons someone might need paid leave in March.

Advocates haven’t lost hope in the possibility of enacting a law at the federal level that covers all Americans, but much will depend on the outcome of the midterms and which party holds power in Congress. If Democrats hold Congress, and perhaps gain a few more seats in the Senate, then they’ll make a hard push for it. But if Democrats lose Congress, “we will need to shift our attention to the states,” Leiwant said.

More states passing paid leave programs will only put more pressure on Congress to act. They will offer more models and give lawmakers concrete experience with how it works in their home states. Those whose states haven’t acted might feel “a little more fire,” Chavin said, to act and ensure their constituents can get paid leave, too. “We’re just going to do it one state at a time until we get the full buy in,” Chavin said. “Each win helps build that momentum.”