Paid Maternity Leave Legislation in the United States: A Global Outlier

The United States of America is one of seven countries worldwide that does not mandate paid maternity leave for child-bearing employees, standing in contrast to the much smaller nations of Papua New Guinea, Micronesia, The Marshall Islands, Nauru, Palau and Tonga.[i]  Suriname was also included on this list until 2021 when it enacted paid maternity leave legislation.[ii]

The current maternity leave standard issued by the United Nations International Labour Organization (ILO) is fourteen weeks, compensated at no less than two-thirds of what the mother had been earning prior to childbirth.[iii]  The vast majority of countries comply with this, with some countries like Sweden offering over a year of paid leave.[iv]  The most common types of maternity leave are through employment related social insurance programs, direct payment of maternity benefits from employers, or some combination of the two.[v] 

It was only in 1993 that the U.S. legislated for unpaid maternity leave through the Family and Medical Leave Act (FMLA)[vi]  which requires employers to provide twelve weeks of unpaid leave to new mothers.[vii]  However, there are numerous exceptions to this requirement including organizations with less than 50 employees, employees that have worked with an organization for under 12 months, and certain part-time workers.[viii]  As a result, only 60 percent of the American workforce is eligible for unpaid FMLA protection.[ix]

While many countries are now advancing paid parental leave policies to include fathers and other caregivers[x], the U.S. has been unable to pass legislation that provides financial security to mothers during their “fourth trimester”.[xi]  Most recently, the unenacted Build Back Better Act of 2021 proposed 12 weeks of paid family and medical leave before being stripped down to a meager 4 weeks.[xii]  The proposed law would have applied to all employers regardless of size, length of service or worker classification.[xiii]

Some American parents are in a more favorable position depending on which state they live in.  Thirteen states and the District of Columbia mandate paid family and medical leave programs ranging from seven to twelve weeks for private sector employees.[xiv]  All but one of these states utilize a social insurance policy design that funds benefits through pooled payroll taxes on employees and/or employers.[xv]  Those employed in government roles also enjoy paid maternity leave benefits.  In 2019, Congress enacted the Federal Employee Paid Leave Act (FEPLA) which provides most civilian federal employees with 12 weeks of “paid parental leave” in connection with the birth of an employee’s child or for the placement of a child with an employee for adoption or foster care.[xvi]  The majority of states also offer some form of paid parental leave for state employees to cover the birth or adoption of a child, with some states also offering coverage for new foster placements.[xvii]  

This patchwork of federal and state laws results in only 21 percent of American workers receiving paid parental or family leave from their employers and just 9 percent of lowest quartile earners availing of these benefits.[xviii]  The consequence is that many new parents, particularly low-wage workers, are forced to go back to work extremely soon after a birth or adoption.[xix]

Most family leave policies internationally are intended to encourage female labor supply, originating with the increase in the female workforce in the 1960s and 70s.[xx]  Although there is no compelling consensus on the impact of family leave policies on female workforce participation, a 2013 study concluded that the expansion of family leave policies outside the U.S. is an important factor explaining why female employment growth in the U.S. has been weaker than other OCED countries.[xxi]  Indeed, the female labor force participation in the US has evolved into a pattern with very high rates of employment in early life which sharply decline with motherhood, which is being progressively delayed.[xxii]

There are several examples from high income countries that the US could emulate to bring the country in line with global norms. Canada’s social insurance program offers 15 weeks of paid maternity leave for mothers at 55% of pre-birth earnings with an additional 35 weeks of parental leave which both parents can avail of.[xxiii]  In Sweden, its taxpayer funded program entitles parents to approximately 16 months of leave for one child with additional days for multiple children. Compensation in Sweden amounts to about 80% of the parent’s salary for most of the allocated time.[xxiv]  Australia provides an income-tested 24 weeks of paid parental leave per family along with up to twelve months of unpaid leave.[xxv] The Australian scheme is funded through general tax revenue and is planned to increase to 26 weeks in July 2026.[xxvi]

Overall, the U.S. has many international examples to draw from along with successful schemes implemented domestically for certain employee groups at both the federal and state level.  The time has come for the U.S. to enact federal legislation for paid maternity leave and remove itself from the minority group of countries that fails to provide basic financial security to new mothers.

Joyce Herward is a staff member of Fordham International Law Journal Volume XLIX.

[i] See Id., see also Claire Cain Miller, The World ‘Has Found a Way to Do This’: The U.S. Lags on Paid Leave, NY Times, Jun. 20, 2025, https://www.nytimes.com/2021/10/25/upshot/paid-leave-democrats.html

[ii] See International Labour Organization, Suriname: New Legislation on ‘Paid Parental Leave’ (2019), https://www.social-protection.org/gimi/ShowNews.action;jsessionid=kiCp16TKDTXycMlRM_Iy_lKc_TD95tEn39pefxFyUQbx0xDz1_eE!876743894?lang=EN&id=25145&utm

[iii] See International Labor Office, Maternity and Paternity at Work, law and practice across the world, 16 (2014), https://www.ilo.org/sites/default/files/wcmsp5/groups/public/@dgreports/@dcomm/@publ/documents/publication/wcms_242615.pdf

[iv] See World Policy Center, How Much Paid Leave is Reserved for Mothers of Infants? https://www.worldpolicycenter.org/policies/how-much-paid-leave-is-reserved-for-mothers-of-infants, (last visited Mar. 1, 2026); see also Claudia Olivetti and Barbara Petrongolo, The Economic Consequences of Family Policies: Lessons from a Century of Legislation in High Income Countries, 31 The J. of Economic Perspectives 205, 208-209

[v] Id.

[vi] 29 U.S.C. § 2612(a)(1)(A)

[vii] The FMLA also allows other caregivers such as fathers to avail of unpaid leave.

[viii] Id.

[ix] See e.g., AEI-Brookings Working Grp. On Paid Fam. Leave, Paid Family and Medical Leave: an Issue Whose Time Has Come (2017), https://www.aei.org/wp-content/uploads/2017/06/Paid-Family-and-Medical-Leave-An-Issue-Whose-Time-Has-Come.pdf?x97961

[x] See e.g. Claire Cain Miller, supra note iv (globally, 109 countries have parental leave available to fathers).

[xi] See e.g., Saru M. Matambanadzo, The Fourth Trimester, 48 U. Mich. J. L. Reform 117, 120 (2014)(describing the “fourth trimester” as a conceptual framework drawn from maternal nursing and midwifery that reconstructs pregnancy to include a 3-6 month period of rest, recovery, and transition after the birth of a child). See also, Katharine B. Silbaugh, Family Needs, Family Leave in 2023, 53 Seton Hall L. Rev. 1609, 1616 (2023), https://scholarship.law.bu.edu/cgi/viewcontent.cgi?article=4571&context=faculty_scholarship&utm  (describing the medical leave required for the parent to recover along with bonding leave as “an undifferentiated bundle of recovery from childbirth, nursing, and family adjustment).

[xii] H.R.5376, 117th Cong. (2021-2022), https://www.congress.gov/bill/117th-congress/house-bill/5376/summary/53 (the legislation passed in the House but failed in the Senate).

[xiii] Id.

[xiv] See https://bipartisanpolicy.org/wp-content/uploads/2025/02/2025-Feb.-Features-of-PFL-programs.pdf (listing California, Connecticut, Massachusetts, New Jersey, Rhode Island, Washington, Colorado, Delaware, Maine, Maryland, Minnesota, Oregon and New York).

[xv] See Bipartisan Policy Center, State Paid Family Leave Across the U.S., https://bipartisanpolicy.org/explainer/state-paid-family-leave-laws-across-the-u-s/ (last visited Mar. 1, 2026) (New York is the outlier, using a mandatory private insurance system which employers are required to purchase)

[xvi] See e.g. Office of Congressional Workplace Rights, Paid Parental Leave for Congressional Branch Employees (2019), https://www.ocwr.gov/employee-rights-legislative-branch/family-and-medical-leave-act/paid-parental-leave/

[xvii] See e.g. National Conference of State Legislatures, Paid Leave: State Leave and Medical Leave Laws,  https://www.ncsl.org/labor-and-employment/state-family-and-medical-leave-laws (State laws vary in which state workers are covered, with some only including executive branch workers and others including all public employees)

[xviii] Deborah A. Widiss, Equalizing Parental Leave, 105 Minn L. R. 2176, 2176 (2021), https://minnesotalawreview.org/wp-content/uploads/2021/05/2-Widiss_MLR.pdf

[xix] Id.

[xx] See Claudia Olivetti and Barbara Petrongolo, The Economic Consequences of Family Policies: Lessons from a Century of Legislation in High Income Countries, 31 The J. of Economic Perspectives 205, 208-209, 212

[xxi] Id.

[xxii] Id. at 228

[xxiii] See Emma O’Shea, Paid Parental Leave: Comparisons from Canada, Germany, and Sweden, 28 J. of Public Pol’y and Pub. Admin. 1, 5-6 (2021)

[xxiv] Id. at 9

[xxv] See Services Australia, Paid Parental Leave, https://www.servicesaustralia.gov.au/parental-leave-pay (last visited Mar. 25, 2026)

[xxvi] See Australian Government Dept. of Social Services, More support for working families, https://www.dss.gov.au/system/files/resources/2405-004-budget-factsheet-paid-parental-leave-v7-web.pdf (last visited Mar. 25, 2026)

This is a student blog post and in no way represents the views of the Fordham International Law Journal.