'SICK LEAVE' BILL ADVANCING

Congress is moving swiftly to enact temporary legislation to provide mandatory sick leave for workers sickened by the H1N1 virus and other influenza-related illnesses.

Any legislation is sure to give the business lobby heartburn, but this is a train that seems to be leaving the station with dispatch. Congress and the federal bureaucracy have made it a priority in recent years to be attentive to issues involving public preparedness, and mandatory sick leaves falls in that policy junction.

Both the Senate Health, Education, Labor and Pensions Committee and House Education and Labor Committee have planning hearings for Nov. 10 and the week of Nov. 16, respectively. Education and Labor Committee leaders, Rep. George Miller, D-CA, the committee chairman, and Rep. Lynn Woolsey, D-CA, introduced the Emergency Influenza Containment Act (HR 3991) on Nov. 3.

Expect a companion bill from the Senate following the HELP Committee hearing. If Sen. Tom Harkin, D-IA, HELP Committee chairman, sponsors the bill, like his House counterpart Miller that will give the effort additional urgency.

Five Days of Leave

The Miller-Woolsey bill, titled the Emergency Influenza Containment Act, would mandate paid sick leave to full-time and part-time workers being told to leave work or not come to work because the employer believes the employee has symptoms of a contagious illness or has been in close contact with someone showing symptoms of a contagious illness. The legislation defines a contagious illness as "influenza-like-illnesses," such as the spreading H1N1 virus.

The legislation would determine the amount of sick leave for covered workers based on calculating their regular pay rate and scheduled work hours, up to five days of paid leave. If workers continued to be sick, they could go on unpaid leave under the Family and Medical Leave Act or other employer sick leave polices, thus protecting their jobs, according to provisions of the legislation.

The legislation directs the Department of Labor to establish guidelines for implementation, but does not specify how it would be enforced if passed. OSHA could get that role as it already has a considerable workplace enforcement apparatus in place. Co-sponsor Woolsey chairs the Workforce Protections Subcommittee under Education and Labor, the sub-panel with primary oversight authority over OSHA in the House.

Misgivings from Business

The bill has met with early criticism from organizations that represent businesses, including the National Federation of Independent Business and U.S. Chamber of Commerce, but it appears to be written in a way to try to mollify expected opposition. For instance, the legislation would exempt small employers and companies that already provide five or more paid sick days per year, and it would not apply to employers with fewer than 15 employers.

Workers also would not be covered simply by calling in sick on their own, but would have to directed by their employer to stay home. However, workers will benefit from a provision that prohibits their being fired or disciplined when they comply with the employer’s directive to stay home or not come to work.

That Congress would seek to enact emergency H1N1 legislation is not unexpected. Federal authorities through OSHA, the Centers for Disease Control and Prevention and other agencies have advised employers in the strongest terms for many months to establish their own flexible policies regarding sick leave for contagious workers struck by influenza-related illnesses.

40 Percent Lack Sick Leave
Signaling urgency to the legislative action is the recent New York Times article that cited government statistics in reporting that nearly 40 percent of all private-sector workers do not receive paid sick days – thus precluding many of them from deciding to stay home if they are sick since they would not be paid.

The Times story also quoted a 2008 survey that found that 68 percent of those not eligible for paid sick days said they had gone to work with a contagious illness, while 53 percent eligible for paid sick days said they had done so as well.

Miller said a CDC report that estimates that a sick worker will infect one in 10 coworkers offers sufficient justification for legislation.

Congress historically enacts emergency legislation sparingly. In 2008, legislation was sponsored to address the agriculture labor shortage in California, for instance, and it considered emergency medical legislation for Hurricane Katrina victims.

More: Emergency Influenza Containment Act, New York Times sick leave article

Photo: Rep. George Miller (Source: House Education and Labor Committee)