Will Paid Sick Leave Be Mandated By Law?
The H1N1 swine flu pandemic, which has infected as many as 22 million Americans, hospitalizing 98,000 and killing roughly 3,900 since it first broke out in April, has prompted legislative discussion about mandating paid sick leave at the federal and state level and in some cities such as New York City. In spite of admonitions from the Centers for Disease Control and Prevention (CDC) to workers to stay at home if they are sick, some say that the lack of paid sick leave has created an obstacle. CDC statistics show that a sick employee in the workplace risks infecting 10 percent of their colleagues – the so-called “presenteeism” paradox of causing more economic loss than absenteeism. However, approximately 39 percent of all workers in private industry do not get paid sick leave, according to the Bureau of Labor Statistics. Of course, the statistics differ as to full-time versus part-time workers: 73 percent of full-time workers receive paid sick leave benefits compared to only 26 percent of part-time workers in private industry.
Currently, there are no federal legal requirements for paid sick leave. For companies subject to the Family and Medical Leave Act (FMLA), the Act does require unpaid sick leave. The FMLA provides for up to 12 weeks of unpaid leave for a “serious health condition” of either the employee or the employee’s spouse, son, daughter, or parent. In many instances, paid leave may be substituted for unpaid FMLA leave. Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a worksite where at least 50 employees are employed by the employer within 75 miles of that worksite.
Federal Legislative Proposals
Several bills have been proposed at the federal level to mandate paid sick leave, and warrant your close attention during this pandemic. The Emergency Influenza Containment Act (H.R. 3991) proposed by Reps. George Miller and Lynn Woolsey of California on November 3, would require employers to provide at least five paid sick days to workers who are sent home from work ill or told to stay home because of symptoms related to contagious illnesses such as the H1N1 flu virus. Under this bill, employees could only take time off for their own illness.
The Pandemic Protection for Workers, Families and Businesses Act (S. 2790/H.R. 4092), proposed by Sen. Christopher Dodd and Rep. Rosa DeLauro of Connecticut on November 17, would require seven days paid sick leave they fall ill with swine flu or seasonal flu and would include parents who stay home with sick children. (The Dodd-DeLauro bill is packaged as an emergency measure but is largely based on The Healthy Families Act, which was introduced last May in the House (H.R. 2460) by Rep. DeLauro and in the Senate (S. 1152) by the late Sen. Ted Kennedy.)
Another key difference between the two is that under the Miller-Woolsey bill, the sick days would go into effect if an employer tells a worker to go home or stay home. Under the Dodd-DeLauro bill, an employee would decide when to use the days. Under both bills, businesses with fewer than 15 employees would be exempt, and both bills would sunset after two years.
Some senators have announced opposition to such legislation, arguing it would hurt the already aching economy by imposing inflexible policies and new financial burdens on small businesses. In addition, many employers already offer paid sick leave, or make other arrangements, such as telework, to mitigate outbreaks of contagious illnesses. Counter-arguments in favor of the legislation are that workers should not have to choose between getting paid or staying home ill, and employers might end up with dozens of unproductive, sick workers making their co-workers unproductive.
State Laws
At least a dozen states reportedly have considered or are considering whether to mandate a certain amount of paid sick leave per year. New York is not one of them. For an update on those campaigns, see the National Partnership for Women & Families and the Healthy Families Act Coalition website.
New York City
In New York City, the Paid Sick Time Act (Int. No. 1059) was introduced in August and is currently pending in hearings before the Committee on Civil Service and Labor. That bill would require employers in New York City with 10 or more employees to give employees one hour of sick leave for every thirty hours worked -- up to 9 paid sick days per year. Small businesses (fewer than 10 employees) would be required to give up to 5 paid sick days per year. Under the bill, sick days could be used when the employee is sick or to allow the employee to care for sick children or other sick relatives. The bill also has a provision allowing sick days to be used to care for children whose schools have been closed by city officials for public health reasons, even if the children are not themselves sick.
Considerations For Employers
The passage of such legislation will require those employers subject to the laws to revisit their existing paid time off (PTO) policies to ensure compliance. And for those employers without PTO policies, such legislation will require immediate implementation of policies compliant with the mandated minimum amount of sick leave. In the meantime, employers should continue to monitor guidance provided by the CDC and the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA). These agencies have issued fact sheets designed to help employers and workers promote safety during the H1N1 pandemic, and minimize proliferation of H1N1 in the workplace. According to OSHA, all employers should be implementing a combination of control methods to protect workers and reduce the transmission of the H1N1 virus in the workplace, including:
- encouraging sick workers to stay home
- promoting hand hygiene and cough etiquette
- keeping the workplace clean
- promoting vaccination and addressing travel and
- planning for additional actions if the severity of the pandemic increases.
