Another Bill that Would Mandate Paid Sick Leave for Flu is Introduced in House and Senate; Congressional Hearing Takes up Paid Sick Leave Cause

As promised, Sen. Chris Dodd (D-Conn.) and Rep. Rosa DeLauro (D-Conn.) have introduced in both chambers of Congress emergency legislation that would provide most employees with up to seven paid sick days to care for themselves or a family member with a contagious illness, including the H1N1 influenza virus. The Pandemic Protection for Workers, Families, and Businesses Act (S. 2790, H.R. 4092) would allow employees to use these sick days to tend to their own flu-like symptoms, obtain a medical diagnosis or preventive treatment, care for a sick child, or care for a child whose school or child care facility has been closed due to the spread of a contagious illness. Part-time employees would also be entitled to paid leave on a pro-rated basis. Employees would have the discretion to decide whether they need to take leave, although the Department of Labor (DOL) could issue a regulation requiring medical certification. In addition, the bill would make it unlawful for an employer to take an adverse action or otherwise discriminate against employees that avail themselves of these leave benefits. If enacted, the terms of this bill would take effect within 15 days, and sunset after two years. Employers that already provide up to seven days of annual paid sick leave would not be required to provide additional benefits.

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