56 this evidence suggests that employers are unlikely

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56 This evidence suggests that employers are unlikely to offer benefits that are at least as minimal as those mandated under FMLA unless they are directly required to do so by law. 57 2. Unpaid leave FMLA's failure to guarantee paid family leave is perhaps its most glaring omission compared to the widespread existence of paid family leave policies in most of the industrialized world. 58 Even among nations considered close comparators to the United States such as Australia, Canada, the United Kingdom, and New Zealand, the United States is the only country that does not provide any paid family leave; until recently, Australia did not provide paid leave either, but now provides up to 18 weeks of leave paid at minimum wage. 59 This comparison makes it all the more surprising that the U.S. legislature has not recently expressed any clear intention to try to institute a paid family leave program. 60 55. See id. at 174-75. 56. Asher & Lenhoff, supra note 38, at 118. 57. See Pelletier, supra note 2, at 554 (noting that a 1990 survey of 253 U.S. corporations revealed that 62% of firms without parental leave programs "would only offer such a program if required by the state or federal government"). 58. See id. at 558-59 (describing leave under FMLA as a "hollow right" because of its unpaid nature, as the right is protected by law yet inaccessible to employees who cannot afford to take it, and claiming that the United States employs a "radically different approach to maternity leave than the rest of the developed world"). 59. White, supra note 3, at 185, 223; DEP'T OF SOC. SERV., AUSTL. GOV'T, PAID PARENTAL LEAVE SCHEME (Aug. 29, 2014, 10:35 AM), - responsibilities/families and-children/programs-services/paid-parental-leave-scheme. 60. See White, supra note 3, at 223 (noting that, as of 2009, "although a number of state-based initiatives have emerged in recent years," the United States has made no significant progress at the federal level to implement paid family leave). [Vol. 37:1
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ENCOURAGING WORK-FAMILY BALANCE Many employees, even those eligible for leave under FMLA, choose not to take leave because they cannot afford to miss time from work without pay. 61 Additionally, although employees have traditionally been permitted to substitute accrued paid leave (e.g., sick leave or vacation leave) for unpaid FMLA leave, in 2008 the Department of Labor passed new regulations prohibiting employees from using their accrued paid leave under FMLA unless they had specifically complied with their employer's leave-taking policies. 62 The implementation of this additional hurdle to use of FMLA leave for employees who otherwise would have access to paid family leave suggests that provision of paid leave is not a priority under current US policy. 63 Paradoxically, although FMLA was intended to alleviate work-family conflict, it fails on both the work-enhancing and the family-enhancing dimensions, in large part because leave is unpaid.
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