Imagine two married couples who are both about to welcome a new baby. All four work and are eligible to take job-protected leave for the birth of their new child under the Family and Medical Leave Act (FMLA). Amy, who works at a factory, and Toni, who has a job at a tech company, both inform their employers and make plans to both take the full 12 weeks under the law. But Lisa and Mark, who work at the same restaurant, are told by their employer that they can’t both have 12 weeks of leave. Instead, they must split a total of 12 weeks between the two of them.
Workers have used the FMLA 566 million times since it became law in 1993. But because of a longstanding – and deeply unfair – limitation in the law, married couples who happen to work for the same employer have to share their allotment of FMLA leave when they take time for a newborn, newly adopted or foster child, to care for a parent with a serious health condition or to to care for a military family member with a serious injury or illness. This marriage penalty means those couples have access to less leave time overall, and the loved ones they need to care for get shortchanged on caregiving time.
Research on leave-taking by heterosexual couples shows that when men and women have to share a single bucket of leave, men take less of it. This increases the caregiving burden on women, with negative consequences for their careers including reduced earnings. But having separate amounts of time leads men to take more leave. Families benefit when new dads have time to bond with their infants, as they become more engaged caregivers and have better co-parenting relationships.
Nearly five million people are shortchanged by FMLA’s marriage penalty
It may seem as though this FMLA rule could only impact a small number of people. But it’s common for married couples to have similar education levels and economic backgrounds, which can lead to them pursuing similar careers. In fact, we find that in about nine percent of married couples, both spouses work in the same industry. In addition, in some regions, a few large employers may dominate the job market, such as hospital systems, big warehousing or manufacturing companies, or government employers including school and university systems. This is more common in rural communities. That can mean that married couples are more likely to face the FMLA’s marriage penalty in some regions or industries than in others.
We estimate that among people eligible for the FMLA, 4.9 million married individuals are employed at the same place as their spouse and thus would be harmed by the FMLA’s marriage penalty when they need leave. That’s about 3.5 percent of all married employees, a small but meaningful share.
Married people in some demographic groups are more likely than average to be affected by the marriage penalty, including Asian American, Native Hawaiian and Pacific Islander (5.3 percent), American Indian/Alaska Native (3.6 percent) and Hispanic/Latino individuals (3.6 percent). At least 3 percent of married employees are subject to the marriage penalty in every state, and the rate is as high as 4.5 percent in Nevada.
These married couples were employed across a range of industries similar to other workers, but were slightly more likely to be in some industries than would otherwise be expected, including education, transportation and warehousing and public administration.
The FAIR Leave Act is a simple fix that would help working families
Luckily, there’s an easy solution. The Fair Access for Individuals to Receive Leave (FAIR Leave) Act, introduced by Senators Joni Ernst (R-IA) and Maggie Hassan (D-NH) and Representatives Sarah McBride (D-DE), Brian Fitzpatrick (R-PA) and Haley Stevens (D-MI), would update the FMLA to remove its marriage penalty. Knowing your job is protected when you need time away for a new child or to care for a parent is a right that every worker should have. For more than three decades, the FMLA has provided that peace of mind to more than half the workforce, and this long overdue bill will finally extend that peace of mind to married couples working for the same employer.
The author thanks Tori Coan, Michelle Feit, Sharita Gruberg, Mettabel Law, Udochi Onwubiko and Gail Zuagar for their contributions.
Methodology:
Research published by the U.S. Bureau of Labor Statistics finds that among couples who both work in the same industry, 63.1 percent also both work at the same establishment. The National Partnership’s new analysis draws on that rate of coworking couples sharing an employer, and is based on estimates of currently employed, married individuals 16 and older who work for wages in the same industry as their spouse, using 2019-2023 American Community Survey data accessed via IPUMS USA, University of Minnesota, www.ipums.org, and adjusted based on the overall rate of FMLA eligibility for married workers, 64.2 percent. Racial groups do not include individuals who identify as Hispanic/Latino, who are analyzed separately. The race, ethnicity and state of residence of each individual is counted separately.
