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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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.

Photo credit:  Phil Date Photography

Employers that already provide at least 5 days of paid sick leave would be exempt from the provisions of this bill. In addition, employers would be permitted to end the sick leave at any time by informing the employees that they believe the employees are well enough to return to work. Employees would be able to continue on unpaid leave under the Family Medical Leave Act or other existing sick leave policies. Those employees who follow their employer’s direction to stay home because of contagious illness cannot be fired, disciplined or made subject to retaliation for following directions.

The entitlements provided in this bill would go into effect within 15 days after enactment, and sunset after two years. This bill has been referred to the House Committee on Education and Labor. According to a press release, this committee will hold a hearing on this emergency legislation the week of November 16.

Although this bill is considered a temporary measure, there has been a push this session to pass permanent sick leave legislation. The Healthy Families Act (H.R. 2460) introduced in May 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. These provisions are also incorporated in the Balancing Act of 2009 (H.R. 3047), legislation introduced this summer by Rep. Woolsey that integrates a number of previously-introduced work/family balance bills.

Photo credit: Phil Date Photography

EFCA

Supporters of the Employee Free Choice Act (EFCA) are pushing forward with a “compromise” bill that may be introduced sometime next month.

Employee Benefits

Rep. Alan Grayson (D-Fla.) introduced the Paid Vacation Act (H.R. 2564), a bill that would mandate paid vacation time for most employees.

Healthcare/Workplace Safety

Two new bills would impact the health care industry. The Nurse and Health Care Worker Protection Act of 2009 (H.R. 2381) would mandate the creation of a safe patient handling and injury prevention standard for direct-care registered nurses and other health care workers. The Nurse Staffing Standards for Patient Safety and Quality Care Act (H.R. 2273) would require that all hospitals develop and implement staffing plans that meet newly established minimum direct care registered nurse-to-patient ratios, and adjust staffing numbers based on patient acuity levels and other considerations.

Meanwhile, the Small Business Health Options Program (SHOP Act) (H.R. 2360) would create nationwide health insurance pools for small businesses.

Work/Family Balance

The Healthy Families Act (H.R. 2460, S. 1152), a bill that would require employers to provide paid sick leave to employees, was reintroduced in the House and Senate.
 

Employees would be entitled to avail themselves of sick leave – which begins accruing from the first day of employment – 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 the place of employment and is rehired within 12 months, that employee is 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 Health Families Act would not need to modify their policies or permit additional paid time off.

A similar bill was introduced in 2007 by Rep. DeLauro and Sen. Ted Kennedy (D-Mass.), but failed to gain sufficient support. This prior legislation lacked the current bill’s leave accrual process, and the provisions permitting domestic violence or assault victims to avail themselves of paid sick leave to seek medical attention or services from a victim services organization or to take part in related legal proceedings.

The current legislation has been referred to the House Committees on Education and Labor, Oversight and Government Reform, and House Administration. Sen. Kennedy is expected to reintroduce a companion bill in the Senate later this week.