Will this bill be the first step towards a minimum standard of paid sick leave for employees?

Representative George Miller (D-Cal), chairman of the House Education and Labor Committee, and Representative Lynn Woolsey (D-Cal), chair of the Workforce Protections Subcommittee, announced the introduction of emergency temporary legislation November 3, 2009, that would guarantee a maximum of five paid sick days for employees sent home or directed to stay home because their employer believes they have symptoms of a contagious illness, or have been in close contact with an individual who has symptoms of a contagious illness, such as the H1N1 flu virus. The House Education and Labor Committee will hold a hearing on the legislation, called the Emergency Influenza Containment Act (H.R.3991), the week of November 16. President Obama declared the H1N1 flu a national emergency October 24.

“Sick workers advised to stay home by their employers shouldn't have to choose between their livelihood, and their coworkers' or customer's health,” said Miller. “This will not only protect employees, but it will save employers money by ensuring that sick employees don't spread infection to co-workers and customers, and will relieve the financial burden on our health system swamped by those suffering from H1N1.”

“To help control the spread of the H1N1 flu virus, workers who are sick should stay at home,” said Woolsey. “This bill will ensure that workers who are directed to stay home by their employers can do so without paying a financial penalty.” It is not clear whether the bill, which has seven cosponsors, is supported by the House leadership or Senate Democrats, according to media reports, but Miller will seek a vote on the bill as soon as possible.

Duration of leave. According to the bill's provisions, the amount of paid sick leave will be calculated based on the employee's regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work. The Secretary of Labor will be tasked with issue guidelines to assist employers in calculating the amount of paid sick leave available to employees under the emergency proposed legislation. After the first workday (or portion thereof) an employee receives paid sick leave under the proposed bill, an employer may require the employee to follow reasonable notice procedures in order to continue receiving the leave.

Among other provisions, the proposed Emergency Influenza Containment Act:

• Guarantees a sick worker up to five paid sick leave days a year if an employer "directs" or "advises" a sick employee to stay home or go home due to a contagious illness. The term "contagious illness" includes influenza-like illnesses such as the novel H1N1 virus.


• Covers both full-time and part-time workers (on a pro-rated basis) in businesses with 15 or more workers. Employers that already provide at least five days' paid sick leave are exempt.


• An employer can end paid sick leave at any time by informing the employee that the employer believes they are well enough to return to work. Employees may continue on unpaid leave under the Family Medical Leave Act or other existing sick leave policies.


• 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; employers violating the act would be subject to the Fair Labor Standards Act.


• Would take effect 15 days after being signed into law and sunset after two years.

The Centers for Disease Control (CDC) has confirmed that H1N1 influenza is widespread in 48 states, estimating that through July 23, between 1.8 million and 5.7 million cases of pandemic 2009 H1N1 influenza have hit the United States, resulting in 9,000-21,000 hospitalizations. Miller also cited CDC estimates that a sick worker will infect one in ten co-workers. As a result, the CDC and other public health officials have advised employers to be flexible when dealing with sick employees and to develop flexible leave policies that will allow employees to stay home without fear of losing their jobs.

Paid sick leave at the forefront. The H1N1 pandemic has raised the national debate over the necessity of paid sick leave in the United States. As it stands, paid sick leave is available to approximately two-thirds of US workers, according to the Bureau of Labor Statistics (BLS). It is startling to see the leave differential between private and public sector workers. Sixty-one percent of private industry workers receive paid sick leave, yet 89 percent of individuals employed by state and local governments have access to paid sick leave. However, both the private and the public sector have one thing in common, the lowest wage workers are far less likely to receive paid sick leave than the highest paid workers. Just 37 percent in the lowest 25 percent of wage earners receive paid sick leave, while 88 percent of the high wage earners receive paid sick leave.

The District of Columbia, San Francisco and Milwaukee are municipalities that have paid leave programs, but Milwaukee's paid sick leave ordinance was declared unconstitutional. Nationally, the Healthy Families Act (S. 1152/H.R. 2460) would establish a minimum standard of paid sick leave for employees, allowing workers to earn up to seven paid sick days a year. It is currently under consideration in both by the House and Senate.

The Healthy Families Act would allow the paid sick days to be used to care for an employee's own illness or physical or mental condition, to obtain a medical diagnosis, a related treatment, or preventive care, or to care for a family member for any of the above reasons. The provision would also allow employees using the paid sick leave to recover from or seek assistance related to domestic violence, stalking or sexual assault. Workers would accrue one hour of paid sick time for every 30 hours worked in order to earn up to 56 hours or 7 days of paid sick time. Employees would begin to earn paid sick time at the commencement of their employment, but would not be entitled to use the leave until 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. Employers can require workers to provide documentation supporting any request for leave longer than three consecutive days.