Pursuing Equitable Implementation of State Paid Family Leave Policies: A Case Study From Washington State on the Role of Tribal Engagement and Sovereignty

Overview

Washington State (WA) is one of the 13 states plus the District of Columbia who have passed paid leave legislation to date. ¹ Evidence suggests that these programs have had important impacts on income- and health-related outcomes (Van Niel et al., 2020). This policy brief describes implementation of the WA Paid Family and Medical Leave (PFML) program vis-à-vis Tribal governments as employers and impacts on American Indian and Alaska Native (AIAN) state residents’ access to the benefit. In particular, lack of Tribal engagement in the policy has obstructed Tribal participation, policy awareness, and buy-in. This brief provides background on WA PFML, describes intersecting systemic and policy factors that negatively impact PFML access for AIAN populations, offers a Tribal specific state-level paid leave implementation analysis framework, and concludes with implications for practice to promote equitable paid leave access for AIAN Washingtonians moving forward.

Background

As the fifth state to pass paid leave legislation, WA began PFML payments in 2020 to eligible workers who experience a qualifying birth, adoption, foster placement, health event, caregiving need, or family member military deployment. The benefit includes up to 90% wage replacement for up to 12 weeks. ² In addition to broadly increasing paid leave access for all eligible workers, WA PFML has the potential to impact income- and health-related equity gaps for WA families who cannot afford to take unpaid leave when a health, caregiving, or deployment event arises. AIAN people are a group that faces significant health and economic inequities rooted in colonialism—exemplified by a 25% poverty rate among AIAN adults, the nation’s lowest life expectancy among all racial/ethnic groups, and significant excess morbidity from preventable diseases (Centers for Disease Control and Prevention, 2022; Warne & Lajimodiere, 2015). Although a variety of Tribal and U.S. government and nongovernmental policy and programming initiatives do or have existed to address these disturbing statistics, population-oriented policies like PFML are designed to have unique potential to advance equity due to their more universal benefits eligibility structure and their focus on financial continuity during critical moments of need in individual and family health.

Importantly, however, unique considerations exist with regard to PFML benefits access for AIAN people versus other groups that, left unaddressed, inhibit WA PFML’s equity-goals. There are 29 federally recognized sovereign Tribal nations whose lands fall within the borders of WA. Tribal nations’ sovereign status means that Tribes generally seek self-governance over matters on their Tribal land and involving their Tribal citizens and that states are obligated to meaningfully consult with Tribes surrounding policy-making that affects their nations and citizens. Moreover, their sovereign status makes Tribes one of the only categories of employer excluded from mandatory participation in state legislated programs like PFML. Tribal participation in otherwise state-mandated legislated programs depends largely on State-Tribal engagement; perception of relevancy to Tribal government; and benefit or burdens for Tribes, their citizens, and their employees. Therefore, the issue of Tribal sovereignty, in combination with the duly important considerations of the impacts of racism and ethnic discrimination toward AIANs, signifies a need for a more critical analytic framework over and above a typical state-level policy analysis.

Collectively, Tribal nations are among WA’s top employers. Rural AIAN people are those most likely to be employed by a Tribe and are among those most likely to live in U.S. Health Resources and Services Administration designated health professional shortage areas (Martino et al., 2019; Taylor Policy Group, 2022). So, it is notable that no Tribe has yet to opt into the WA PFML benefit program. Some Tribes in WA do offer alternate family leave benefit options to their employees outside of the state PFML program that preexisted WA PFML. These benefits mirror those some employers elect to offer in nonpaid leave states, such as temporary disability insurance policies that employees pay into and that offer 60% pay coverage over a specified number of weeks. However, as one AIAN parent who recently welcomed a new baby shared, “I would like to see similarities with state and Tribal paid leave, so that if everyone else [in Washington] gets 90% pay we aren’t getting 60%—that’s a huge difference, especially if you make less. That’s a third of my salary!” In addition, some Tribes in WA do not offer any paid leave benefits outside of accrued sick and vacation hours.

Information Gathering

This policy brief draws on field research data from a variety of sources including (a) an environmental policy scan; (b) informational discussions with a small sample of Tribal leaders from eastern and western WA who responded to an invitation to share what they know about WA PFML; (c) meetings with state-level program implementers knowledgeable about Tribal engagement activities and Tribal PFML participation; (d) conversations with 17 AIAN working families across seven counties throughout diverse regions of the state (this data collection was reviewed by the University of Washington Institutional Review Board); and (e) meetings with AIAN community organizations.

Policy Implementation Framework

This analysis utilizes an emerging Washington State Tribal PFML Policy Implementation Framework (Figure 1). The framework incorporates three policy lenses: (a) sovereignty-based factors influencing PFML implementation, including Tribal governance, State-Tribal government-to-government relations, and the role of Tribes as employers; (b) anti-racist approaches delineating both historical and contemporary effects of structural and interpersonal racism on policy/program outcomes (Joshi et al., 2014; Michener, 2022; Vohra-Gupta et al., 2021); and (c) standard macro, meso, micro ecological policy models. Including sovereignty as an analytic frame is a novel contribution to the paid leave literature and is essential in accounting for the unique dual racial and political identities of AIAN people, as enshrined in federal law (Villegas et al., 2016).

OPEN IN VIEWER

Figure 1.

Washington State Tribal PFML Policy Implementation Framework.

The emerging Washington State Tribal PFML Policy Implementation Framework scopes beyond the macro policy field to (a) emphasize significant historical Indigenous and western influences on contemporary governance structures, and (b) simultaneously account for community strengths and past and present settler colonial harms that impact AIAN health and policy access at each subsequent level of implementation (policy, organizational, and frontline). Quality implementation is assessed on the basis of equitable paid leave access and outcomes for AIAN people as well as fully realized Tribal engagement in the policy process.

Applying the Framework: Washington PFML Implementation and Tribal Nations

Macro—Policy Field: Tribal sovereignty is an often-overlooked structure within the U.S. federalist system. And when it has been considered, much more has been analyzed with respect to federal-Tribal governance relationships than State-Tribal relationships. These State-Tribal relationships are shaped by both federal- and state-level law and policy. In WA, the Centennial Accord is the government-to-government agreement entered into by the federally recognized Tribal nations whose lands fall within the state borders and the State in 1989. ³ It is on the basis of Tribal sovereignty and this Accord that PFML legislation stipulates that Tribes are exempt from mandatory PFML participation for their employees. Importantly, and distinctly from most employers, Tribes act as both governments and employers within the implementation system.

WA PFML originated as a bill passed by the state legislature and signed into law by the governor in 2017. Before the law’s passage, a federal planning grant and years of effort from advocacy organizations helped to lay the groundwork for the program. The program’s design was informed by existing models in other states. An environmental scan, which included publicly available archives of pre- and post-legislation PFML planning activities and grant outputs and conversations with knowledgeable AIAN community organizations, indicates that Tribes were not engaged in the design phase. Although formal Tribal consultation ⁴ may not have been legally required for PFML by virtue of the fact that Tribes are not mandated to participate, state policymakers could have elected to involve Tribes through less formal engagement, formal communications, and/or consultation.

Meso—Implementing Organizations: The state Employment Security Department (ESD) administers Washington PFML. As such, ESD is responsible for designing the Tribal opt-in process; and, like all state agencies, must have a Tribal Liaison stationed within the department to facilitate government-to-government communication. The formal structures of Tribal sovereignty are perhaps a way to legally enshrine what Jamila Michener terms “voice” of a systemically marginalized group in the policy process, in that sovereignty is the strongest mechanism through which Tribal nations exercise influence over the policy environment and maintain treaty-based rights to govern within their current borders (Michener, 2022). Voice is limited, though, by a state approach that views respect for Tribal sovereignty as a single pillar of upholding autonomy rather than dual pillars of preserving autonomy and engaging in proactive, sustained, and meaningful dialogue and partnership. Positive State-Tribal partnerships are supported by ongoing relationship building and sustainment centered around trusted messengers, formal government-to-government meetings, and concrete evidence of follow-through and positive outcomes following such meetings. Important partnership successes have been seen in arenas like health care (e.g., the 2019 passage of the WA Indian Health Improvement Act) and education (e.g., the 2016 mandate that tribally developed curriculum be taught in WA public schools); however, State-Tribal communication has been cited consistently as an issue (Smith, 2018). Tribal consultation is one avenue through which State-Tribal policy conversations could take place. Tribal leaders report not having been provided with much information regarding the specifics of WA PFML and potential Tribal participation—nor approached for formal consultation—and have not been engaged in co-designing the Tribal opt-in process (state program implementers confirm that consultation and Tribal opt-in co-design have not occurred to date). However, when asked about the lack of formal Tribal consultation on PFML by the state, Tribal leaders communicated that consultations can be seen as limited in their meaning or value and as a way for the state to check a box. Clearly, they are not a valuable engagement tool in and of themselves in the absence of deeper trust and relationship building.

When the state neglects to meaningfully engage Tribes or to offer formal Tribal consultations on a policy, it undermines the full intent of the Centennial Accord as well as the pursuit of equity in which PFML was enacted. Ultimately, the current outcome is a disproportionate burden on Tribes to advocate for these activities and a universal exclusion from state PFML benefits for Tribal employees. As one Native mother reflected on the state’s commitment to including Tribes in policymaking processes,

We just have to keep holding them accountable for it. Because it will be all great in the beginning, but then it’ll just be not talked about anymore, shoved underneath the rug. Just be forgotten about, just like how it always is with us.

In the absence of sufficient decision-making information—especially regarding financial impacts on employers and employees, the degree of flexibility in implementation provisions, and the anticipated benefits of paid leave—Tribes we spoke with who are aware of PFML have opted for a “wait and see” approach to future participation, a common strategy for navigating state policymaking in a way that protects their interests as sovereign entities.

Micro—The Frontlines: Although implementation has not yet moved beyond the macro policy level of implementation in the case of Tribal employers, current activities within the macro sphere will have significant implications for organizational and front-line implementation in Tribal communities in the event that a Tribe opts into PFML in the future. For example, proactive involvement of Tribal employers in networks that support PFML outreach could build policy awareness and pre-implementation capacity at the frontlines and raise organizational-level awareness of Tribal community contexts and needs within ESD and its affiliated implementation support agencies. Existing networks do not include Tribal representatives.

AIAN parents we interviewed about their parental leave experiences expressed the need for both better benefits and better support in accessing benefits, whether these benefits are through state PFML or another employer-based policy. And those employed by Tribes were very aware of the growing disparities between Tribal and non-Tribal employees since PFML enactment. For example, one participant’s comments reflect her equal disappointments with the overall process of learning about her benefits and her inability to access WA PFML at her Tribal job:

With my second baby, I did not take any leave. I couldn’t even tell you what they offered. At the time I worked for [Tribal name] Health. I have a background in HR, and so it was frustrating for a little bit there. And because we’re a Tribe they were able to opt out of Washington parental leave, which is frustrating. I felt like there was no coverage anywhere.

Implications for Practice to Promote Equitable AIAN Paid Leave Access

Using the emerging analysis framework, this policy field analysis suggests several key priority action areas to support equitable access to paid leave benefits for AIAN people working in WA:

This analysis is rooted in an understanding that effective State-Tribal policy relations are supported by dual pillars of respect for Tribal sovereignty and proactive engagement. Neither pillar alone can facilitate meaningful relationship building nor achieve the ongoing work of repair and of building a more equitable and positive paradigm in the wake of centuries of colonization. A logical priority within ESD is to bolster Tribal engagement and relationship building with Tribes to facilitate Tribes’ full ability to consider PFML participation. Given the information shared by Tribal leaders and state employees, a broader exploration of Centennial Accord implementation may make sense across agencies to evaluate the degree to which its goals are being met. To support anti-racist policy implementation for AIAN people and Tribal nations, it is incumbent upon state agencies to foster these long-term relationships and to demonstrate tangible actions (i.e., flexible implementation strategies) resulting from both formal consultation processes and less formal ongoing conversations. On the Tribal end, Tribes are not mandated to participate in PFML, and PFML may not be the right fit for every Tribal community. However, there is a need to build Tribal leaders’ awareness of the growing inequity in paid leave benefits between Tribal and non-Tribal employees since the rollout of PFML and to evaluate opportunities to remedy this gap in the service of AIAN individuals and families. Furthermore, Tribes may call for formal consultation with the state to advocate for unique or flexible PFML implementation provisions that reflect the state’s economic benefit from Tribes and Tribal lands. Finally, though not directly pertinent to WA, conversations with other paid leave states suggest that their state and Tribal governments would benefit from the information laid out in this brief as they grapple with very similar Tribal policy implementation contexts and lack of Tribal engagement and participation.