Maternity and Paternity Leave

The Military: Making Progress

Ironically, before my wife and I knew we would have our son, then-Secretary of the Navy Ray Mabus asked me to provide some thoughts on the Department of the Navy’s maternity and paternity leave. At the time, I was serving as a special assistant to the secretary and exploring the issue in light of President Barack Obama’s January 15, 2015, memorandum directing federal agencies to modernize federal leave policies for childbirth, adoption, and foster care and to better align them with “leading private sector companies and other industrialized countries.”² At the time of the president’s announcement, the military services allowed commanders to grant birth mothers about six weeks of paid administrative leave following childbirth while men were limited to 10 days as a result of federal law. Civilian birth mothers could be paid while on maternity leave if they had accrued sick leave, and even then they were limited to using them during the first six weeks after a normal birth situation. Non-birth parents were also limited to using accrued sick leave during that six-week window. There were no provisions in law or policy for specified maternity or paternity leave. In sum, I reported that while it was clear that the service secretaries had the authority needed to match the robust multi-month maternity leave policies offered by some private sector companies, changing maternity leave benefits for civilians, as well as paternity leave benefits for both military and civilian employees, would require congressional authorization – not impossible, but a fairly heavy lift in 2015.

While neither the Navy nor the Department of Defense addressed the congressional authorization issue through formal proposals, in the summer of 2015, Secretary Mabus announced that he would triple paid maternity leave for service members in the Navy and Marine Corps from 6 to 18 weeks.³ At the same time, Mabus announced that he would seek congressional approval to expand the number of slots in the Career Intermission Program (CIP) to allow as many sailors and Marines as possible, subject to command approval, to take up to three years off for personal or professional needs, including to have a family or care for ailing parents, and then return to active duty without prejudicing their career progression.⁴ Mabus’s efforts were driven by his belief (formed after serving six years as Navy secretary) that these actions would help with his long-standing efforts to recruit and retain more women and create a more diverse and therefore stronger force. Indeed, as of 2016, about 36 percent of Navy and 30 percent of Marine Corps personnel participating in the program cited “family” as the reason for their participation in the CIP.⁵

Eventually, other military services fully adopted the Navy and Marine Corps Career Intermission Program. Additionally, while falling short of Secretary Mabus’s 18-week proposal, the Department of Defense adopted a 12-week period of maternity leave for all service members as a result of Secretary of Defense Ash Carter’s “Force of the Future” initiative, which he announced during his first days in office.⁶ Force of the Future was a well-intentioned effort to address problems with military and civilian personnel, manpower, and recruitment and retention policies that clearly were inadequate for the 21st century. But beyond this initial step, the Defense Department never took a serious look at how maternity and paternity leave might help recruit and retain the best and brightest for the civilian workforce, many of whom were engaged in the exact same type of work as their uniformed counterparts and serving out in dangerous and uncompromising environments.

The State of Civilian Maternity and Paternity Leave

Unlike with uniformed military personnel in the national security arena, there is little comprehensive effort to retain or even recognize families as a vital component on the civilian side of the workforce. These are the circumstances at the State Department, Department of Defense, USAID, and in the intelligence community. The federal government has paid little attention to civilian parental leave or policies for flexible work arrangements that aid in the recruitment or retention of mothers. Such policies reinforce the importance of work-life balance for parents of newborns or young children. Additionally, many current family policies are based on arcane assumptions: that a single paycheck will support one family, and that one career would be enough for husband and husband, wife and wife, and husband and wife. Taking these factors into account would better match recruiting and retention strategies to the reality of today’s working environment, which is much different than that of 30 or 40 years ago.

Federal law sets the standard for U.S. government civilian family leave, and though individual supervisors may vary in their implementation, policies are standard across agencies. To begin with, there is no designated maternity leave as commonly understood in other sectors. Civilians accumulate two kinds of personal leave, annual and sick, in separate leave accounts; there is no separate allocation of parental leave offered beyond the annual and sick leave the employee has earned. Interestingly, while there are no limits on the use of sick leave for adoption and fewer restrictions when using sick leave to care for family members who are ill, policies are highly restrictive for birth mothers and parents.⁷ Birth mothers and parents may only use sick leave explicitly and solely for the “period of incapacitation” of the mother. Thus, sick leave may only be used as maternity leave during a six- to eight-week period following a normal pregnancy – a full month short of the 12 weeks recommended in a 2014 study by Barbara Gault at the Institute for Women’s Policy Research, and well short of the 20 to 26 weeks recommended in studies for the optimal effects for newborn and maternal health.⁸ Other Western industrialized nations have recognized the validity of these medical concerns. Indeed, the United Kingdom offers paid maternity leave for a period of 26 to 52 weeks and the Scandinavian social democracies, Denmark and Sweden, offer paid leave for a full year or more.⁹ The same six- to eight-week restrictions apply for a father using sick leave for the purpose of paternity or family leave. In short, even if parents have hundreds of hours of sick leave, they can use it only for a very limited period of time after the child is born. Current federal law and Office of Personnel Management (OPM) regulations focus exclusively on the physical recovery of the employee – in an extraordinarily limited sense – and not on the physical or mental health of the child, ignoring that the child’s well-being will be decisive in the employee’s performance upon returning to work. Likewise, policies on leave accrual and usage take into account neither the time spent on prenatal care, which is another drain on employee sick leave, nor the impact of preterm delivery.

Steering employees toward the use of sick leave presents other challenges as well. Federal employees accrue sick leave at a rate of about 13 days a year – enough to cope with a regular set of medical issues but not nearly enough to cover personal illness, family emergencies, and multiple weeks of maternity leave, particularly for more junior employees. OPM guidance does permit an employee to use annual leave to cover periods of time beyond the six- to eight-week time frame, assuming an employee has accrued annual leave. Federal employees accrue annual leave at different rates depending on their years in service, with junior employees accruing annual leave at a lower rate.¹⁰ As a result, people with low levels of available annual leave often seek “leave donations” from across their social networks in the event of child-rearing or an extended illness, like cancer. Furthermore, annual leave accrued in excess of 240 hours (six workweeks) is subject to “use/lose” at the end of each year, which prohibits employees from storing up annual leave in anticipation of predictable leave events like maternity (or paternity) leave. Arguably, this creates a perceived or even a real disadvantage for parents of newborns.¹¹ In the end, the current system often gives parents of newborns no choice but to return to work when the leave is exhausted, often in advance of best practices, or choose “unpaid” family leave under the Family Medical Leave Act (FMLA), or both – each of which exacerbates an indebtedness cycle for the parents.¹² Indeed, the current system fails to address a reality that parents quickly come to understand: Parents will need sick leave and personal leave to care for young children long after the months following birth. Exhausting that leave in a few months will put both employers and managers in difficult positions that will, in the end, make employees and offices less productive.

The physiological and mental demands of childbirth and a range of other social and demographic factors require a more holistic view of leave policy for federal employees. Creating an effective family leave system in a timely fashion is even more important now that baby boomers have begun to retire and millennials, who comprise 90 percent of new parents, are now a full-third of the nation’s workforce.¹³ Millennial career management has been subject to extensive exploration and criticism, but millennials’ lack of interest in staying in a single organization for their full work life and their growing desire for more flexible and life-friendly policies present a major demand signal to reassess federal personnel benefits and management. Recruiting and retaining a workforce where a third of the pool includes parents or potential parents of young children will require an incentive and benefit system that hinges, at least in part, on extending usable family leave benefits to the federal workforce. A thorough and wholesale reform of parental leave is needed if the federal government is to successfully recruit, cultivate, and retain a diverse set of talented employees in a tight and competitive job market.

The Business Case for Family Leave

There is ample evidence that Americans strongly support paid leave for health reasons alone, for both mothers and fathers, following the birth or adoption of a child, but equally compelling is the business and workforce effectiveness case for robust parental leave policies, even beyond the basic costs associated with recruitment and retention. Frequent studies have articulated that mothers and fathers experience exhaustion because of the lack of uninterrupted sleep that comes with being a new parent.¹⁴ Even if parents think they can handle a newborn and work full-time, it is probably not a great idea for those in the national security arena. There is no shortage of documented incidents where sleep loss contributed to catastrophic events, such as the Challenger tragedy and the Exxon Valdez accident, as well as the nuclear disasters at Three Mile Island and Chernobyl.¹⁵ Other studies focusing on the military have noted not just an increased likelihood of human error but also poor decisionmaking, lack of accuracy, and problems with timeliness on teams suffering from a lack of sleep.¹⁶ Policymaking while sleep deprived is no different than drowsy driving – both can cost lives.

A well-thought-out family leave program can positively benefit both employees and employers financially. California has one of the longest-running paid parental leave programs in the United States. Studies show that new mothers in California are more likely to return to work following their paid leave, which not only provides job continuity, but also results in mothers of younger children working more regularly and at higher incomes.¹⁷ This means that young mothers are able to build a better economic base and provide more robustly for their children, passing the benefits of parental leave onto the next generation while also improving the economy of California and its tax receipts.

In the private sector it is well understood that the costs of retaining a high-value and high-performing employee are much less than the costs of losing that employee. The unnecessary turnover can result in productivity losses stemming from the position’s vacancy and the costs of recruiting and training the new employee.¹⁸ There is a wide variance in the costs of replacing an employee, but by some estimates it can cost several times the salary of the original employee to bring in a replacement.¹⁹ In other words, it might cost a company $400,000 to replace an employee who made $100,000 per year. In short, funding a modest three- to five-month period of parental leave avoids the costs of lost productivity and the even greater costs of losing an employee, providing some of the same advantages as the Career Intermission Program.

Secretary Mabus saw similar trends in the Navy and Marine Corps, strengthening the case that from a purely business perspective, efforts to retain women in the civil service were critical. At the time he began pursuing the issue in 2013, the Navy was losing double the number of experienced women (with 6 to 12 years of service) than men.²⁰ In “purely selfish” terms, as the secretary put it in 2016, “The investment that we have in a pilot, submariner, surface officer, or an intel cryptologist, an IT specialist, is huge. And if we lose that person after seven or eight years, we have to start over with somebody brand new without the experience. And we have to make that investment all over again.”²¹ With the length and cost of security clearances demanded for personnel in the national security workforce, these actual and time costs for replacing personnel are exceptionally high.

In another study in California, 91 percent of employers surveyed felt that paid medical leave policies enacted by the state for parents had either boosted profits or had no effect on their bottom line.²² In terms of benefits to the employer, incentivizing the use of paid maternity leave has been shown to increase productivity, morale, and retention without a negative impact on financial bottom lines.²³ When Google increased paid leave to a full 18 weeks, the rate at which “new mothers left fell by 50 percent.”²⁴ Other major corporations have made similar changes, including Johnson & Johnson, which announced in May 2015 that “all new parents – maternal, paternal, and adoptive” would be able to take eight additional weeks of leave, specifically providing birth mothers with 17 weeks of paid leave.²⁵

Potential Solutions

The basic problem is that federal code makes no provisions for a separate category of parental leave (maternal, paternal, or adoptive) that could be accrued and used by parents, and it also limits the flexibility of federal employees to use existing paid leave programs.²⁶ Fixing the federal system to provide more flexible and robust paid family leave will require congressional action, specifically changes to Title 5 of the Code of Federal Regulations, section 630 (5 C.F.R. § 630). Some fixes are under consideration at this time. Members of Congress, including Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Rosa DeLauro (D-Conn.), have proposed a Family and Medical Insurance Leave, or FAMILY Act, that would guarantee up to 12 paid weeks of medical leave for all working Americans. Additionally, the administration of President Donald Trump has requested funding in its FY18 budget proposals for six weeks of paid leave for mothers, fathers, and adoptive parents.²⁷ The devil is in the details, however, and it is unclear how this budget proposal would impact federal employee benefits, which are governed by federal law. The good news is that wholesale change is not required. Even “bridging” efforts or pilot programs could provide increased flexibility for employees to use the benefits they have already earned and might begin to mitigate some challenges and assist with retention and recruitment.

The creation of a separate category of parental leave under 5 C.F.R. § 630 for use by mothers, fathers, and adoptive parents should be the cornerstone for any future federal leave program. Such leave could be used in combination with sick leave and annual leave, as in the private sector, to provide families the means to cover prenatal and postnatal periods or the time off needed for integration by adoptive parents. Though parental leave accrual rates for individual federal employees might depend on how such a program is designed, the goal should be to allow all parents of newborns at least 18 weeks of paid leave. Additionally, this benefit should be enhanced by regulatory changes that create a broader system of “family leave” that allows employees to bank annual leave beyond the use/lose limits, and specifically apply it to maternity, paternity, or adoptive leave, and that allows “family pooling” of sick and parental leave in order to give families greater flexibility in how to care for their children and dependent relatives. In the implementation of such programs, the federal government should ensure that adoptive, same-sex, and foster parents have equal flexibility when integrating new members of the family and are supported by robust equal opportunity protections where relevant.

Fully addressing the parental leave issue should be part of a broader set of personnel policy reforms within the federal government. But while reform is necessary, it is insufficient without a corresponding change in management and operational culture, particularly in the demanding national security field. Earlier survey work by the Center for a New American Security (CNAS) indicated that many in the national security field – particularly men – were appreciative of the growing attention to the needs of young families, but felt discouraged from taking advantage of even the limited benefits they did have due to the pressing needs of their office and portfolios. To address this challenge, the tone must be set from the top down, and thus guidance should actively encourage managers to allow their employees to use parental leave and provide greater flexibility in shifting around employees to cover anticipated gaps. While legislation can grant broader authorities to departments, it will still be incumbent on managers to implement those authorities and balance the needs of individuals with the needs of the organization.