The Family and Medical Leave Act was a “first step” when it became law 30 years ago and should be expanded, President Joe Biden said earlier this year. But some employees hired by Biden’s predecessor apparently didn’t deserve the benefit, The Daily Signal has learned.
Department of Homeland Security records reveal that Biden’s presidential transition team in early 2021 denied a request for paid parental leave from two married DHS employees as they tried to care for the medical needs of a premature baby who spent the first week of life in the neonatal intensive care unit.
The couple, Cherie Short and Michael Bars, were political appointees of the Trump administration, who say they weren’t interested in salaries but only health insurance to help care for their infant.
The denial of paid parental leave to them by the incoming Biden administration came after homeland security officials said Biden-Harris transition headquarters in Wilmington, Delaware, had reviewed the couple’s request.
One email reviewed by The Daily Signal said a “high level conversation” occurred about whether to grant paid leave for Short and Bars.
Short, then a DHS employee whose premature baby was born weighing 5 pounds and confined to a neonatal intensive care unit for a week, told The Daily Signal that Biden had reached an “all time low” by targeting working mothers and their children.
“It had all been approved,” Short said of the couple’s request for paid parental leave in late 2020. “It took more of an effort to deny us than to give it to us.”
The federal government’s family leave benefits were “weaponized politically” by the incoming Biden team, she added, and the situation represented the “real war on women, and a war on babies.”
In the same speech about family leave six months ago, Biden praised the benefit of “12 weeks’ paid parental leave for federal employees,” a benefit signed into law in 2019 by his predecessor, President Donald Trump.
As a presidential candidate after eight years as vice president and 36 years as U.S. senator representing Delaware, Biden publicly supported such a policy, proclaiming in a December 2019 tweet: “It’s about time federal workers get paid parental leave.”
And, in June 2022, the Biden White House released a “Blueprint for Addressing the Maternal Health Crisis.”
Conflicting Bottom Lines
As it turns out, though, Biden’s transition team was less committed to the principle in early 2021 before his Jan. 20 inauguration as president, according to documents obtained by The Heritage Foundation’s Oversight Project and reviewed by The Daily Signal. (The Daily Signal is Heritage’s multimedia news organization.)
In considering the couple’s request, the Department of Homeland Security switched from a December 2020 policy of what one email called “Bottom Line–Yes, they can use Paid Parental Leave” in reference to staff hired by the Trump administration.
The documents obtained by Heritage’s Oversight Project show that in January 2021, the Biden administration policy applied to Short and Bars instead became: “Bottom line is that they can receive the PPL [paid parental leave] … But, it ends with their termination on [Jan. 20]. It is not a means or reason to keep them beyond the 20th.”
When asked to comment Aug. 29 on what happened to the couple, a staffer in the Department of Homeland Security’s press office sent an email to The Daily Signal saying: “We can work on getting you something as early as we can sometime tomorrow!”
After numerous follow up email requests from The Daily Signal, however, the DHS media office responded Aug. 31 by saying: “We are unable to comment on personnel matters specific to former or current DHS employees.” The office instead referred a reporter to a 22-page document of rules from the Office of Personnel Management.
Short and Bars requested paid parental leave in late 2020, after Biden had defeated Trump in the Nov. 3 election. But the couple had notified DHS officials in September about their plans to make the formal request.
The Daily Signal was able to reach Short and Bars after finding the couple’s names in the DHS documents obtained by Heritage’s Oversight Project through the Freedom of Information Act.
In personnel, the federal government makes a distinction between “career” employees and “political” employees. Career employees have civil service protections against being fired abruptly and usually work for agencies regardless of what party controls the White House. Political employees, by contrast, serve at the pleasure of the president.
Short, a deputy assistant DHS secretary of intergovernmental affairs, first inquired about the paid parental leave benefit Sept. 4, 2020, as shown in her email exchange with John J. Hill, assistant secretary for the office of engagement and partnership at DHS.
In one email, Hill wrote to DHS human resources specialist Andral Butler: “The question I was asked by one of our employees: ‘Are political appointees entitled to the same maternity leave benefits as career employees?’”
Butler replied to Hill that day in an email: “Just spoke with my supervisor and yes they are.”
In February 2021, Politico ran an article about several Trump appointees denied paid parental leave after Biden’s inauguration. The story referred to an unnamed “pair of married former Trump Homeland Security officials” who had provided the news outlet with emails showing “an agency official telling them that, as political appointees, their parental leave benefits would be treated the same as those for career employees.”
Biden and Vice President Kamala Harris were sworn in Jan. 20.
Politico’s story quoted a White House statement saying that some Trump administration employees made “last minute” requests, or already had “resigned,” but neither was the case with Bars and Short.
Bars told The Daily Signal that he and Short were “abruptly told less than a week before the inauguration that this same courtesy would not be offered.”
“This is not about money, handouts, charity, or so-called extensions, but obligations to government employees and their families that should apply equally regardless of one’s political philosophy or role,” Bars said. “We were not asking to continue to receive paychecks, but just remain insured during a time of critical care for our premature baby and his mother.”
Bars added:
Both Biden and Harris advocated for this in law, but they spitefully issued a categorical denial to several families serving in the Trump administration. …
In effect, our plans to care for our child were torn up by faceless Biden bureaucrats who dishonestly claimed ‘tardiness,’ but we know these matters were made at the top of the Biden transition team and later handled by the West Wing.
‘Affirmative Act to Deny the Benefit’
Past administrations routinely extended benefits to political appointees of the previous administration from the opposing party, said Michael Rigas, an acting Office of Personnel Management director under the Trump administration.
The Bush, Obama, and Trump administrations allowed political appointees from the previous administration to be “holdovers” in circumstances such as an employee maintaining insurance for certain medical treatments or when an employee was just weeks or a few months from retirement.
“All the Biden transition team had to do was nothing,” Rigas told The Daily Signal. “It took an affirmative act to deny the benefit already approved.”
Bars and Short also provided copies of old emails to The Daily Signal, which added context to redacted records obtained from the Department of Homeland Security through the Freedom of Information Act request by Heritage’s Oversight Project.
On Dec. 14, 2020, about five weeks after the election, Bars sent an email to five DHS officials, copying his wife.
“My wife and I are each submitting requests for PPL [paid parental leave]. Our baby will be born any day now, and we’re hoping to begin processing this paperwork ASAP,” he wrote. “Cherie Short from IGA [intergovernmental affairs] is my wife and I’ve cced her on this e-mail.”
That same day, Short, the expecting mother, sent an email to DHS officials about the matter.
“I was informed today [that] OPM has already had an official ruling/policy on this for other appointees in the same situation,” Short wrote. “Thankfully I was told today we should be eligible for the full 12 weeks of paid maternity leave. Brenda Roberts, Office of Pay and Leave, is your POC [point of contact] for additional questions.”
DHS personnel official Wayne D. Smith replied and sent a four-page document on the rules, which the couple didn’t find inconsistent with their situation.
When their baby was born Dec. 18, 2020, Bars sent DHS officials an updated version of the form for paid parental leave.
Smith again replied, writing: “Got it. Many thanks. All the best.”
A few days later, on Dec. 22, an email to Hill, the assistant secretary, from someone else in the agency (the name is redacted) provided an analysis of personnel policy with regard to paid leave requests from outgoing political appointees.
“Bottom Line–Yes, they can use Paid Parental Leave,” the email to Hill said.
A day earlier, Politico’s Playbook newsletter reported that Short and Bars, who had become a senior communications adviser in the Trump White House, had welcomed their newborn son at Virginia Hospital Center.
Baby in ‘Intensive Care Unit on an IV’
By Jan. 5, 2021, though, the Department of Homeland Security’s human resources office said the couple’s leave benefit would end in 15 days, Jan. 20, when Biden would be sworn in as president.
The email, from Smith, began courteously with the words “Happy New Year and congratulations.”
However, Smith shifted to blaming changes in leave policy on the National Defense Authorization Act for fiscal year 2021. He wrote in the email obtained by The Daily Signal:
So while you are currently eligible for PPL [paid parental leave], upon your resignation/termination of your employment on or around January 20, 2020 due to the presidential transition, you will no longer be a covered employee and therefore no longer entitled to FMLA [Family and Medical Leave Act], which in turn means you are no longer eligible for PPL. This means, upon your resignation/termination, you will not remain on the Department’s rolls. Your entitlement to FMLA leave now, as a current employee, does not serve as a basis to extend your employment into the next administration serving a new president and secretary [Alejandro Mayorkas].
The next day, Bars sent another email to Smith, noting the circumstances faced by the couple:
Our baby was born almost 4 weeks early, we spent 8 days in the hospital, 5 days of which [were] in the intensive care unit on an IV, and he continues to battle challenges from being very underweight and premature. Our child’s current 24-hour care requires both Cherie [Short] and I at home, and Cherie continues recovering from an emergency C-section.
This PPL [paid parental leave] is critical to our family and livelihoods as we work to raise a strong, healthy boy under unique and unforeseen complications to our birth plan. We have planned our finances, future, and child’s care for the next several months based on the belief that Cherie and I would both be entitled to 90 days of PPL.
We have been informed by various people at OPM [Office of Personnel Management] and throughout the [government] that, during presidential transitions, it is customary for appointees who are currently on PPL to not submit their resignation letters, and as such the incoming administration would generally honor the PPL entitlements for those currently on leave due to the birth of a child.
Smith replied Jan. 8, 2021, writing: “The ball is in play. I’ll circle back no later than Tuesday of next week with an update.”
The reference to the National Defense Authorization Act as the reason for denying the requested leave never came up again, Bars told The Daily Signal.
“The NDAA didn’t restrict the family leave program; if anything, it expanded it,” Bars said.
‘Discussed Specifically and in Detail With Wilmington’
The documents obtained by Heritage’s Oversight Project show additional communications among Department of Homeland Security officials, as well as between the couple and the Biden-Harris transition team.
On Jan. 15, 2021, documents show, Bars sent an email to Mark R. Koumans, director of the presidential transition office for DHS, to check on the status of the leave request.
In the email, Bars noted that “it’s not a traditional ‘holdover’ request.”
“I’m very happy they have read our letter, but if it’s at all possible, I would feel more comfortable knowing that the request has in turn been issued to Wilmington,” Bars wrote to Koumans, referring to the Biden-Harris transition team’s headquarters in Delaware.
“Anything you can do to shake this info loose for clarity would be immensely appreciated! Have a wonderful weekend!” the new father of a premature baby boy wrote.
On the night of Jan. 18, 2021—two days before Biden’s inauguration ceremony—Koumans wrote back to Bars to convey what the Agency Review Team told him: “Mark—we’re not aware of anyone who is going to be held over.”
Koumans also wrote:
This is not what you were hoping to hear but I think you also knew this was the most likely outcome. I am sorry to be the bearer of this news and I’m sorry I don’t have other news.
In an email to Koumans the next morning, Jan. 19, however, Bars asked: “Have they been issued and considered our request specifically?”
That afternoon, Koumans replied:
Michael and Cherie, I have now confirmed that, yes, your case was discussed specifically and in detail with [Biden transition officials in] Wilmington and with government HR experts who understand these rules far better than I ever will. I am sorry I don’t have different news to share. Best wishes.
Two days later, on Inauguration Day, Bars sent another email to Koumans saying that Chris Liddell, a deputy Trump White House chief of staff, “had a high-level conversation with the Biden team yesterday regarding this matter although no indication was given as to a decision.”
“While we await this final determination, we have not yet submitted our letters of resignation,” Bars wrote, asking Koumans to call him.
Bars told The Daily Signal that he couldn’t recall whether the two spoke.
Bars said that as one more desperate attempt to keep health insurance for the baby, he attempted to transfer to being a career employee, but was denied.
‘At the Pleasure of the Administration’
On Jan. 29, 2021, nine days after Biden took office, an email went out to several Department of Homeland Security employees from Angela Bailey, chief human capital officer for the agency. The subject line read “FLAGGING: Request for comment from Politico—additional materials.”
Bailey’s memo referred to a statement for Politico, the Washington-based news outlet, from DHS’ Office of the General Counsel:
CLEARED STATEMENT FROM OGC: Paid Parental Leave, a form of Family and Medical Leave, affords eligible current employees with pay for absence from work. It is not severance pay. Political appointees serve at the pleasure of the administration. When an administration ends, so does the employment of its political appointees.
The same memo added more information, noting it was from management to employees and not intended for the press:
FROM MGMT: We DO NOT have resignation letters from Short and Bars. As I mentioned, they are no longer being paid and no longer have DHS access.
In the portion for DHS management and not intended for the press, Bailey’s email is a little more blunt about Short and Bars.
“Bottom line is that they can receive the PPL [paid parental leave], even though we know they can’t meet the 12-week requirement,” Bailey wrote, meaning that the couple wouldn’t be employed by DHS for 12 weeks after the Dec. 18 birth of their son.
“But, it ends with their termination on the 20th,” she wrote of the leave. “It is not a means or reason to keep them beyond the 20th.”
On Saturday, Jan. 30, 2021, Bars and Short each received a “benefits separation letter” by email from the Department of Homeland Security. Bars replied to the agency that both were still on parental leave. His wife didn’t get a similar letter.
Since Bars believed that both were on paid parental leave, he told The Daily Signal, he didn’t send a letter of resignation. He said each of them was “owed several thousands dollars for unused vacation days.”
“We never issued any type of resignation whatsoever because we didn’t want to disqualify ourselves from the chance that our health insurance would continue to be honored as initially indicated for months,” Bars told The Daily Signal.
“No notice of termination was ever received from DHS except for the ambiguous ‘separation package’ that was emailed on the morning of Saturday, Jan. 30,” he said, adding later: “We were both on parental leave at the time, but no reference to it was ever made and everything just stopped.”
Bars was able to get a job that also provided health insurance for the family.
Bars and Short both said their son, who turned 2 in December, is doing well now. And as of July, he has a newborn brother.
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