Introduction and summary
The United States lags far behind its peers—and the rest of the world—in guaranteeing paid leave to its people. To remedy this shortcoming, Sen. Kirsten Gillibrand (D-NY) and Rep. Rosa DeLauro (D-CT) recently reintroduced the Family and Medical Insurance Leave (FAMILY) Act, the marquee federal paid family and medical leave proposal for the 118th Congress.1 If enacted, the FAMILY Act would create for the first time the permanent right to paid, job-protected comprehensive family and medical leave for all American workers.
Today, just 43 percent of the private sector workforce has access to short-term disability coverage through their employer to cover an extended medical leave, with low-income workers disproportionately left out.2 Even fewer have paid leave to care for a seriously ill loved one or bond with a new child: Just 24 percent of private sector workers have access to paid family leave.3 Each and every day, too many Americans are forced by financial necessity to return to work instead of tending to their health or their loved ones, while others get or give the care they need at the cost of jeopardizing their family’s economic security.
Every Congress since 2013 has introduced previous versions of the FAMILY Act.4 The most recently introduced version includes updates and improvements, reflecting best practices from state paid leave programs and increasing understanding of what workers need.5
This report details the FAMILY Act as introduced for the 118th Congress, highlights what it would do, explains how its various provisions work, and answers pertinent questions. Moreover, this report illustrates how the FAMILY Act will finally guarantee the paid leave Americans need, when they need it the most.
What the FAMILY Act covers
Under the FAMILY Act, workers would be able to take paid leave in order to:
- Address the worker’s serious health condition
- Care for a family member with a serious health condition
- Bond with a new child, including a newborn, adopted, or foster child
- Deal with the impact of a family member’s military deployment
- Respond to needs arising when the worker or their family member experiences sexual or domestic violence (“safe leave”)6
This range of needs is comprehensive, providing essential benefits for workers across the lifecycle. The first four purposes are currently included in unpaid leave under the Family and Medical Leave Act (FMLA),7 as well as under most state paid leave programs,8 providing a proven track record. As past Center for American Progress research has highlighted, comprehensive purposes are essential to meeting the needs of all workers, including women,9 parents,10 veterans and military families,11and people with disabilities.12
The final purpose, safe leave—included in the FAMILY Act for the first time this Congress13—is a critical tool for combating gender-based violence by providing survivors and their families with the tools they need to seek safety.14 Safe leave has been included in some state paid family and medical leave laws,15 as well as in nearly all state and local paid sick time laws.16
Unpacking the FAMILY Act
What family members are covered under caregiving leave?
Workers would be able to take leave under the FAMILY Act to care for the following loved ones when they are seriously ill or injured:
- Spouse, including a civil union partner or other state-recognized registered domestic partner
- Child of any age, including a stepchild, or child’s spouse, or child-in-law
- Parent, including a stepparent or a parent-in-law
- Sibling, including a sibling’s spouse
- Grandparent, including a step-grandparent
- Grandchild, including a grandchild-in-law
- “Any other individual who is related by blood or affinity and whose association with the employee is equivalent of a family relationship”17
Inclusive family definitions that reach beyond the nuclear family are essential to ensuring that all workers can give and receive the care they need to those they love, with particular importance for immigrant families, families of color, and LGBTQI+ families.18 The final category in the FAMILY Act’s expanded family definition covers “chosen family”—loved ones to whom the worker may not have a legal or biological relationship. As CAP research has shown, coverage for chosen family is important for all families but is particularly critical for LGBTQI+ families.19
What family members are covered under safe leave?
Workers would be able to take leave under the FAMILY Act for certain needs in connection with sexual or domestic violence affecting their child; parent, including a stepparent or a parent-in-law; spouse or domestic partner; or “any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”20
What family members are covered under deployment-related leave?
Workers would be able to take leave under the FAMILY Act to deal with certain needs in connection with their child, parent, including a stepparent, or spouse’s military deployment.21
What qualifies as a serious health condition?
The FAMILY Act would use the same definition of “serious health condition” as the federal FMLA.22 Under the FMLA, a serious health condition is an illness, injury, or other health condition requiring either in-patient care or ongoing treatment from a health care provider.23 This can include both acute and chronic conditions, as well as both physical and mental health conditions. Examples include cancer, asthma, a severe stroke, diabetes, Alzheimer’s disease, or a serious accident.24 The FMLA regulations also make clear that a healthy, uncomplicated pregnancy constitutes a serious health condition;25 getting treatment for a substance use disorder can also be covered.26
What needs does safe leave cover?
Workers would be able to take leave under the FAMILY Act in connection with sexual assault, domestic violence, or stalking to:
- Seek medical attention for themselves or a covered loved one in connection with the violence
- Get or help a covered loved one secure services from a victim’s service organization
- Get or help a covered loved one receive counseling
- Seek relocation
- Take or prepare for legal action27
What needs does deployment-related leave cover?
Workers would be able to take leave for certain needs in relation to a covered loved one’s current or upcoming military deployment abroad.28 These needs include:
- Making legal or financial arrangements
- Attending military events or post-deployment activities
- Rearranging child care or elder care for a parent
- Being with a loved one on a short-term military deployment29
What types of parents could take bonding leave?
All covered parents, including birth, foster, and adoptive parents and parents of any gender, would be eligible for up to 12 weeks of bonding leave in a benefit year.30 If a child has two covered parents, this means that each parent could take up to 12 weeks of paid leave under the law.
Coverage and eligibility under the FAMILY Act
Who is covered under the FAMILY Act?
All workers in the United States would be covered. This includes all public sector employees, federal, state, and local government employees, as well as all private sector employees, regardless of employer size.31 The FAMILY Act would also protect self-employed workers, including freelancers, independent contractors, and small-business owners,32 as well as gig workers, regardless of their classification. As the way Americans work continues to evolve, having universal, comprehensive coverage is essential to ensuring that all workers have the protections that they need, both now and in the future.33
Who is eligible for benefits under the FAMILY Act?
The FAMILY Act is designed to ensure all workers qualify for benefits. The bill sets flexible, inclusive eligibility requirements to allow those who meet a very low minimum standard for attachment to the workforce over a relatively long time period to access benefits.34 Attachment to the workforce is measured through workers’ earnings, including wages from all employers, income from self-employment, and unemployment benefits.35
To qualify for benefits, a worker must meet both parts of a two-part standard:
- Part A: The worker must have earned some income during the period that begins with the most recent calendar quarter that ends at least four months prior to the start of the benefit period and ends with the month before the start of the benefit period. Depending on when the worker’s leave starts, this eligibility period lasts seven to nine months. This could include income in any amount, no matter how small, so long as the amount is greater than zero ($0).36
- Part B: The worker must have earned at least a certain total income amount across the eight-quarter period that ends at least four months before the start of the benefit period.37 This amount would be $2,000 initially and then be adjusted annually based on growth in the national wage index.38 It would take a worker earning federal minimum wage ($7.25 per hour) about 276 hours, or a little less than seven 40-hour work weeks, to earn $2,000.39
This low and flexible standard will help low-wage workers; part-time, temporary, and seasonal workers; and those who work intermittently qualify for benefits by setting achievable earnings thresholds over a long time period. The eligibility standards also make benefits portable, meaning that workers can combine earnings from multiple jobs or sources of income, including unemployment benefits, to qualify. The ability to combine earnings from multiple sources is especially important for workers who may move from job to job, have several jobs, or combine traditional and self-employment.40
Duration and benefit amounts
What duration of benefits is available to workers take under the FAMILY Act?
In total, workers could receive benefits for up to 12 weeks in a benefit year. Formally, benefits would be calculated in “caregiving days,” such that the maximum payable amount of benefits would be equal to 60 caregiving days—the number of days in 12 standard five-day workweeks.41 Providing 12 weeks of paid leave is consistent with the FMLA, which provides up to 12 weeks of unpaid leave to covered workers in most circumstances,42 and is similar to many state paid leave programs.43
In addition, unlike prior versions,44 the FAMILY Act as introduced in the 118th Congress does not have an unpaid waiting period. This means that benefits are payable from the first day of leave, following the established best practice from state paid leave programs. This policy change is especially beneficial for low-income workers, who are less likely both to be able to afford an unpaid period and to have access to other forms of paid time off to cover the gap.
How much money would workers receive while on leave?
Workers would receive a percentage of their average monthly earnings in benefits set on a sliding scale based on income. Lower-income workers would receive a higher percentage of their total income, while higher-income workers would receive a lower percentage.
Workers will receive:
- 85 percent of the portion of their monthly wages that is less than or equal to $1,257, plus
- 69 percent of the portion of their monthly wages that is more than $1,257 but less than or equal to $3,500, plus
- 50 percent of the portion of their monthly wages that is more than $3,500 but less than or equal to $6,20045
The FAMILY Act caps benefits at $4,000 per month.46 It also sets a minimum benefit so eligible workers will receive no less than $580 per month.47 All amounts would be adjusted annually based on national average wage index growth.48
Table 1 contains examples of what workers at various income levels would receive in benefits.
The wage replacement rate must be high enough that workers can actually afford to use their leave, particularly for low-income workers and workers of color.49At the same time, raising wage replacement rates makes the program more expensive, which in a social insurance program such as the FAMILY Act means higher costs for workers. Progressive wage replacement rates such as the ones in the FAMILY Act balance program generosity against cost impacts to strike a balance that works for workers. This is why progressive wage replacement has become a standard practice in state paid leave programs,50 a model the FAMILY Act builds upon for the 118th Congress.
What income would be used to calculate benefits?
The FAMILY Act would take a monthly average of income from the calendar year of the most recent three completed calendar years in which the worker’s total income was the highest.51 This would include income the worker earned in wages from any employer, all self-employment income, and all unemployment benefits.52 For example, if a worker were taking paid leave under the FAMILY Act beginning in May 2028, the administering agency would look at calendar years 2025, 2026, and 2027. If 2026 was the highest-earning year, the worker’s benefits would be calculated solely based on the worker’s average total earnings from 2026.
Using the highest of the three most recent calendar years to set the income average serves to benefit workers whose earnings may have suffered due to health or caregiving needs, including those who may have had to take time out of the workforce for reasons connected to their need for leave. For example, if a worker had experienced significantly reduced earnings in the previous calendar year because of a decrease in hours related to a serious health need, using their income from a prior year would offset the negative impact of that reduction on their benefits. This approach also helps workers who may work intermittently or have experienced a period of unemployment, such as due to a layoff.
What is the benefit period?
The benefit period is a yearlong (12-month) unit of time, which is used in various ways under the FAMILY Act.53 Workers cannot receive more than the equivalent of 12 weeks of benefits in a benefit period.54 In addition, the period of time used to assess eligibility is set in relation to the benefit period. 55
The benefit period always begins on the first day of a calendar month. Usually, this will be the first day of the calendar month in which the worker’s leave begins.56 However, if the worker applies for benefits more than 90 days after the start of the worker’s leave, the benefit period may start later.57 The benefit period will then run for 365 days from the starting date.
What protections would employees have in using their rights?
The FAMILY Act would provide important employment protections to all employees, with additional protections for those employed with their current employer for at least 90 days. These protections will apply regardless of employer size and regardless of how many hours the employee works.
While many employees already have important employment protections in connection with leave through a federal law called the Family and Medical Leave Act,58 the FAMILY Act would go beyond the FMLA to provide more universal protections, including new and expanded protections for all employees. The new protections will be particularly important for the 44 percent of employees—including 62 percent of low-wage employees—not covered by the FMLA.59
Would employees have the right to get their jobs back after taking leave?
If a worker has been employed with an employer for at least 90 days,60 the employer would have to give the employee back the job they had before leave, or an equivalent job—meaning one with equal benefits, pay, and other terms and conditions of employment—following leave.61 Failure to do so would be an illegal form of interference.62
Guaranteeing the right to return to work is essential to ensuring workers can actually take the leave they need. For example, in a major study commissioned by the U.S. Department of Labor, fear of job loss was the second-most-cited reason for not taking a needed leave, mentioned by nearly half, 45 percent, of those who did not take a needed leave;63 among low-wage workers, 59 percent cited fear of job loss as a reason for not taking needed leave.64
Would employees have the right to keep their health insurance during leave?
As long as the worker has been employed for at least 90 days by their current employer,65 the employer would be required to continue existing employer-provided health insurance coverage while the employee is on leave, on the same terms as while the employee is working.66 In particular, if the employer pays for some or all of the health insurance premium while the employee is working, the employer would need to continue paying that same share during leave. Failure to continue coverage on the same terms would amount to illegal interference.67
The circumstances under which workers need leave, such as serious illness or a new child, are precisely the times when workers and their families most need health care. Because nearly half of all Americans, including most nonelderly Americans, receive health insurance through employer-sponsored plans,68 continuing that coverage is critical to ensuring access to care. Moreover, employers pay on average 80 percent of the premium for individual coverage and 68 percent of the premium for family coverage;69 for this reason, employers continuing to pay their share of premiums, rather than putting those costs onto workers, keeps workers from taking a substantial financial hit when they can least afford it.
Would employees be protected against interference and retaliation?
For all employees, regardless of how long they have been employed, employers are prohibited from interfering with employees’ rights under the law or retaliating against them for using or trying to use their rights; this includes participation in any action to enforce rights under the FAMILY Act.70 For example, it would be illegal to fire someone because they applied for or planned to use benefits71 or to consider the fact that an employee applied for or received paid leave benefits when making employment decisions.72
If an employer took any adverse action against an employee—for example, firing them—within 12 months of taking covered leave, the FAMILY Act would create a rebuttable presumption of retaliation.73 This means that the court or enforcing agency will automatically assume that the adverse action was retaliatory—that is, the employer took the negative action because the employee exercised a protected right—and therefore illegal. This assumption will continue unless the employer can prove the action was not taken because of the protected action.74 The rebuttable presumption shifts the initial responsibility of establishing whether an act was retaliatory from the employee to the employer, making it easier for employees to vindicate their rights.
Benefit mechanics and administration
The Social Security Administration (SSA) will administer the FAMILY Act.75 Except for those workers in qualifying legacy states, workers will apply directly to the SSA for their benefits.76 In qualifying legacy states, workers will apply through their state program, for which the federal government will then reimburse the state.77
What documentation would workers need to provide?
Workers need to provide a statement proving they were—or, if appropriate, will be—engaged in a covered activity and an attestation that they have given the required notice.78 In addition, where the leave is in connection with the worker’s or a loved one’s health needs, the worker would need to submit documentation from a health care provider.79 If the leave is for another reason, such as to bond with a new child, in connection with a military deployment, or for safe leave purposes, the SSA would specify by regulation what additional documentation is needed.80
When would benefits begin under the law?
Benefits would begin 18 months after the date of enactment of the act.81 For example, if the FAMILY Act were enacted on June 1, 2023, benefits would begin on December 1, 2024.
How would the program be funded?
Like Social Security and Medicare, the paid leave program would be paid for by a payroll tax split evenly between employers and employees.82 Self-employed people would pay an amount equal to the sum of the employee and employer shares.83
How would the law affect employers who offer their own plans?
The FAMILY Act would set a floor, not a ceiling. While these employers’ employees would still be covered under federal law, employers who wish to offer their own paid leave programs, including providing more generous benefits than those provided under the law, have the option to do so. In addition, the FAMILY Act would not take away leave rights workers secured under a collective bargaining agreement or employment contract.84
Existing state paid leave programs and the FAMILY Act
Under the FAMILY Act, states with paid leave laws would have the opportunity to qualify for special legacy state status by meeting specific requirements. If a state becomes a legacy state, it will, in effect, jointly administer its existing state paid leave program and the federal program for people in the state, in exchange for federal reimbursement.85 Washington, D.C., will also have this opportunity.86
Critically, the FAMILY Act explicitly would not preempt existing leave laws.87 As a result, states have the opportunity to do more than what’s required by federal law, whether or not a state has an existing leave law.88
Requirements to become a qualifying legacy state
To be designated as a qualifying legacy state, a state must meet each of the following three requirements:
- Pass a law providing paid family and medical leave benefits prior to the passage of the federal law
- Following specific requirements laid out in the law, provide benefits at least as generous as those offered by federal law to all eligible individuals in the state, except federal employees89
- Meet data-sharing requirements between the state program and the SSA90
Different requirements would apply in the initial year of program benefits.91
What qualifying legacy state status means for workers
If a worker is in a qualifying legacy state, they would apply for and receive both federal and state benefits through their state program, rather than having to apply separately to two programs.92 That means workers will, through a single process, receive benefits at least as generous as those guaranteed by federal law, plus whatever additional benefits, such as more generous wage replacement or additional weeks, their state program provides.
What qualifying legacy state status means for states
Becoming a qualifying legacy state would mean, in effect, administering the federal program for workers in the state and being reimbursed for those costs. Specifically, federal grants would reimburse qualifying legacy states for the money their programs paid out in benefits that would otherwise have been paid out directly by the federal government, along with administrative costs, up to a cap.93
This approach preserves policy flexibility for states. While the federal reimbursement is limited to the costs of providing federally required benefits—that is to say, what the SSA would have spent if it had provided benefits to those workers directly—states will retain the ability to provide additional or more generous benefits out of their own funding, through a single, coordinated system. In addition, states with existing policies could continue to structure them as they have, including using private plans.94
How states and cities can do more
The FAMILY Act does not prevent states or cities from enacting or continuing their paid leave laws.95 This applies regardless of whether the state becomes or is eligible to become a qualifying legacy state. This means that workers would not lose any leave rights they already have, allowing states and cities to continue to innovate.
The FAMILY Act would finally guarantee all Americans the paid leave they need, propelling this country toward a more just economy and workers toward a more secure future. It is time to make this transformative bill into law and ensure that everyone—not merely a fortunate few—gets and gives the care they deserve.