Exploring Pregnancy and Family Leave in Colorado
Lisa Ingarfield | @tritodefi
This year marks the 25th anniversary of the federal Family and Medical Leave Act (FMLA) which guarantees workers in companies with more than 50 employees 12 weeks of unpaid leave after childbirth (or to care of a family member) without fear of losing their job and without loss of benefits. In the past 25 years, of series of additional court rulings and policies have bolstered the FMLA:
In 2015, a U.S. Supreme Court ruling further added to the conversation about pregnancy, childbirth, and employment. The federal Pregnancy Discrimination Act (1978), which amended Title VII of the Civil Rights Act of 1964, pulls pregnancy under Title VII’s prohibition of sex discrimination in employment. In Young vs. United Parcel Services, the U.S. Supreme Court ruled against UPS, finding if accommodations are given to employees with non-pregnancy related disabilities (like a broken foot) but not to women who are pregnant, this constitutes discrimination based on sex. Then, two years ago, in 2016, the Colorado State Legislature passed the Pregnant Workers Fairness Act (PWFA). This law amended the Colorado Anti Discrimination Act (CADA) which prohibits discrimination on the basis of a person’s sexual orientation, religion, disability, race, creed, color, sex, age, national origin or ancestry. What’s great about this Act for Coloradans, versus the federal FMLA, is that it applies to every company, no matter the number of employees.
In addition, the Americans with Disabilities Act (ADA) has sometimes applied to pregnancy, but generally, only when there are complications or impairments resulting from pregnancy or childbirth. An uneventful pregnancy hasn’t received any kind of coverage prior to PWFA in Colorado. The Colorado PWFA requires, much like the ADA, reasonable accommodations be provided to pregnant employees. These accommodations could include more breaks, access to water, a lighter load shift (if available), or perhaps a modified work schedule. Other key provisions of the PWFA include language prohibiting retaliation against a pregnant employee requesting accommodations and preventing employers from requiring “an employee to take leave if the employer can provide another reasonable accommodation for the employee's pregnancy, physical recovery from childbirth, or related condition.”
All these laws and decisions fit into a larger debate about how and when pregnancy and childbirth should be accommodated in the workplace. The debate still hinges on two broad positions: The first argues pregnancy is special. It isn’t the same as a broken foot, and is not an illness, and should be treated accordingly. Women should not have to take sick leave for childbirth or to care for a newborn. To insinuate pregnancy and childbirth are akin to sickness is a problematic argument for many. This is the “difference” side of the debate.
The other side, relies on a position of “sameness” or equality. Pregnancy should be treated like any other temporary disability and pregnant women should have access to the same rights, protections, and accommodations as any person experiencing a temporary disability, impairment, or medical condition. Policies should not carve out special provisions for pregnant employees. This latter argument is predicated on not treating women as different or special, because in so doing, it opens the door for discriminatory behavior by an employer and undercuts the broader social argument for women’s equality.
Regardless of where you fall on the sameness vs. difference debate regarding accommodations and time off for pregnancy and childbirth, there is another piece to this puzzle and that’s paid leave after childbirth. You may be accommodated in your job during pregnancy, but what about after you have given birth? Parental or family leave is a growing concern for many families who are not covered by the FMLA or cannot afford to take unpaid leave. The choice cannot continue to be between caring for your newborn or maintaining a paycheck and benefits. Women should not have to take sick or vacation leave for childbirth and newborn care because neither are illnesses, nor are they vacations.
In this sense these experiences are special and different. But family leave policies tend toward the sameness argument: all family caretaking needs should be addressed together and similarly. The caveat to family leave’s apparent genderless construction is women are still the primary caretakers in all situations, whether it’s for a newborn or an older relative in need of support. Therefore, I call paid family leave policies gender neutral-same-ish solutions. I say ‘ish,’ because while they don’t invoke gender specifically, we know they will be of most benefit to women, particularly lower income women who have very little job protections under the FMLA.
Currently, at the Colorado legislature, Rep. Faith Winter (D-Westminster) is championing a bill to implement family and medical leave insurance in the state. The FAMLI Act would allow employees to take 12 weeks of partially paid leave to care for a new child, for a family member with a serious medical condition, or to address their own serious health concern if it prevents them from working. It would be funded by a paycheck deduction, a percentage calculated based on an individual’s income. The bill, if passed, would apply to all employees, regardless of company size, and like the FMLA, create job and benefits protection for those employees who use the leave. The bill passed out of its House committee on February 6, and is likely to pass the House on party lines. However, it still has to overcome the Republican majority in the Senate and worries abound it will die in a Senate committee. This would be a repeat of 2016 when Winter introduced a similar bill which passed the House and failed in the Senate.
The FAMLI Act, while more in the sameness camp than the difference camp, does acknowledge the need for more effective post childbirth leave policies, an area in which the U.S. is still woefully behind compared to other countries. It could help thousands of Colorado women and their families who are often left with impossible choices. And that’s really what’s most important.