Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

Employees would be entitled to avail themselves of sick leave – which begins accruing from the first day of employment under the bill – after 60 days. Paid sick leave would carry over from year to year, but may not exceed 56 hours unless the employer permits additional accrual. The Act would require medical certification if more than three consecutive days are taken off. If an employee leaves his or her job and is rehired within 12 months, that employee would be entitled to the accrued leave already earned and would be entitled to take sick leave immediately.

Employers that already have in place paid time off policies that allow employees to take such leave for illness and other circumstances outlined in the Healthy Families Act would not need to modify their policies or permit additional paid time off.

In a statement, Rep. DeLauro claimed that “simply showing up to work when you are sick, known as ‘presenteeism,’ costs employers a staggering $160 billion a year in lost productivity,” adding, “It is in the best interests of our nation, and especially our families, to ensure American workers have access to paid sick days.”

Similar versions of this legislation have been introduced since 2004, but have failed to advance. The current bill is unlikely to gain much traction.

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During her remarks, First Lady Michelle Obama said that the Administration endorsed, among other legislative efforts, the Healthy Families Act (H.R. 2460, S. 1152), a bill introduced in both the House and Senate this legislative term that requires employers with 15 or more employees to provide paid sick leave. Under the provisions of this bill, an eligible employee would be able to earn one hour of paid sick time for every 30 hours worked up to a maximum of 56 hours (seven days) annually. This leave could be taken for one’s own or a family member’s illness, be used for preventative care or to address acts of domestic violence, stalking or sexual assault. An employee would start accruing sick leave from day one of employment, and would be able to take leave after 60 days. Sick leave would carry over from year to year, but could not exceed 56 hours unless otherwise sanctioned by the employer. 

President Obama concluded his remarks by saying that the participants plan to “continue this conversation in the coming months, holding forums and roundtables in communities across the country, so we can seek out more good ideas and best practices that we can adopt and promote.”

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In a press release, Rep. DeLauro claimed that “[t]he Dodd/DeLauro emergency legislation allows workers to decide when they are too sick to work—and are healthy enough to return to work. Our legislation will provide real worker protections and also ensures that working parents can take paid sick leave if their child is sick and needs care.” 

Earlier this month, Rep. George Miller (D-Calif.), chairman of the House Education and Labor Committee, and Rep. Lynn Woolsey (D-Calif.), chair of the Workforce Protections Subcommittee, introduced similar legislation.  This bill, the Emergency Influenza Containment Act (H.R. 3991) is not as generous as the Dodd/DeLauro legislation, as it would provide up to 5 days of leave to employees to deal with a contagious illness. In addition, employees would be entitled to this leave only if the employer directs or advises the employee to stay home. Employees would not be entitled to paid leave if they decide for themselves to stay home. Another important distinction between Rep. Miller’s bill and the Dodd/DeLauro bill is that Rep. Miller's bill would not provide paid leave for the purpose of caring for a child.

The introduction of the Pandemic Protection for Workers, Families, and Businesses Act coincided with a hearing conducted by the House Education and Labor Committee on H1N1 and sick leave policies. The discussion focused on Rep. Miller’s bill, the Emergency Influenza Containment Act. Members of the Committee and witnesses also discussed the Healthy Families Act (S. 1152, H.R. 2460), a paid sick leave bill introduced earlier this year by Rep. DeLauro and the late Sen. Ted Kennedy. That bill would allow employees to earn one hour of paid sick time for every 30 hours worked, up to a maximum of 56 hours (seven days) annually. Employees could take this leave to attend to their own or a family member’s illness, or use the paid time off for preventative care such as doctor’s appointments.

During the hearing, Chairman Miller noted that the current H1N1 pandemic called for this emergency legislation. He also pointed out in his written statement (pdf) that this emergency legislation did not supplant the need for comprehensive paid family leave policies. The ranking Republican, Rep. Kline, raised concerns about the interaction of the Emergency Influenza Containment Act with existing laws, such as the FMLA, as well as its impact on smaller companies. Witnesses at the hearing included Rear Admiral Anne Schuchat, (pdf) Assistant Surgeon General, who discussed the status of vaccine availability and steps the Centers for Disease Control is taking in response to the pandemic. Georges Benjamin, (pdf) executive director of the American Public Health Association, and Debra Ness, (pdf) president of the National Partnership for Women and Families, advocated for passage of paid sick leave legislation. Ms. Ness expressed her opposition to conditioning paid leave on the employer’s discretion.  A. Bruce Clark, (pdf) president of Capital Associated Industries, an employers’ association, spoke about the efforts many employees are already taking to respond to the H1N1 pandemic and raised a concern that federal mandated paid leave “will ultimately threaten overall levels and types of responses employers are engaging in.” He raised particular questions and concerns about how a federal paid sick leave mandate would impact paid time off (PTO) policies. He also was concerned about some of the broad and vague definitions in the Emergency Influenza Containment Act and that the legislation would take effect before regulations were issued.

Given widespread public concern with H1N1, there appears to be momentum for Congress to pass some form of H1N1 paid sick leave legislation. Action in the House may come before the end of the year. Efforts to pass this "emergency" legislation will not likely diminish efforts to pass the Healthy Families Act.

This entry was written by Ilyse Schuman.

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