COLUMN: The Law in Real Life: Sick Leave Policy: Legislation Could Ease Burden on Sick Workers

COLUMN: The Law in Real Life

by Linda Holmes, J.D.

Sick Leave Policy: Legislation Could Ease Burden on Sick Workers

Aug. 26, 2008

Think about the last time you ate food that other people had recently touched. Fast-food cooks, grocery store clerks, baristas — whoever. How confident are you that these people weren’t sick? Would it make you less confident if you knew that they lost a day of pay for every sick day; essentially, they pay for the privilege of staying away from work? As the economy tightens, how do the odds change that employees who are unwell will stay home from work — where they might work with food, in a nursing home or in a school — and sacrifice their pay for the day?

A recent poll found that half of all respondents had come to work when they believed they should have stayed home because of health concerns. One reason they gave was a general pressure to be at work, sick or not, but the other reason was the loss of pay for those who had no paid leave.

According to a 2007 study by the federal Bureau of Labor Statistics, about 43 percent of private-sector workers have no paid sick time at all. If you focus on service workers instead of management and professional workers (who would be less likely to actually encounter the public), the picture is even more grim: 61 percent have no sick time. If they wake up with a bug, they choose between losing a day of pay and working sick — around other workers, around customers and potentially around health-care facilities and food preparation. These employees, of course, aren’t the highest paid to begin with, so one would think the financial pressure created by a lost day of pay could be particularly acute.

This is the problem that lies at the heart of a number of current state and federal proposals to mandate paid sick time, both to remove economic burdens from employees who become ill and to avoid the public health risks of employees feeling financially coerced to work when they can’t do so safely. Twelve states have introduced bills to mandate that employers provide at least some paid sick time, and both San Francisco and Washington, D.C., already have passed ordinances requiring such leave for some workers. In Ohio, a proposal to offer seven paid sick days per year to employees of all businesses with at least 25 employees will appear on the ballot to be decided by voters, who strongly support it, according to recent polls.

Of course, the current tight economy cuts both ways. Workers feel more pressure than ever to continue going to work and collecting a check, but many businesses worry that the costs of providing paid sick days will require them to cut back on other benefits.

Family and Medical Leave Act Falls Short

Most workers are covered by the Family and Medical Leave Act, which provides leave for workers to recover from their own serious illnesses or to care for family members with serious illnesses. But leave under the act isn’t required to be paid; the act essentially protects only the right to return to work. Employee advocates have long complained that the leave the act was designed to allow is underutilized by workers who simply can’t afford to leave work for that long. Furthermore, the act applies only to a “serious health condition,” and it’s unlikely that a run-of-the-mill cold would be covered. The act is better at providing leave to recuperate from surgery or receive cancer treatment than it is at making it easier for an unexpectedly sick person to take the day off.

The state proposals currently under consideration vary in scope and in the amount of leave they would provide. Under the general scheme of these proposals, some amount of sick time is accrued as the employee accumulates hours worked, up to a certain number of hours or days per year.

There often is a sliding scale, such that smaller businesses are not required to provide as much leave as larger ones. For instance, the latest form of the bill introduced in California would allow all employees to accrue one hour of paid sick time for every 30 hours they work. It would, however, cap employees of very small businesses (fewer than 10 employees) at five days per year, while other employees would be capped at nine days per year. The Connecticut bill would apply only to employers with at least 50 employees. Proposed federal legislation, the Healthy Families Act, would require employers with more than 15 employees to provide seven days of paid sick leave per year.

As to the anticipated effects on business, interestingly, a city with some experience can be referenced: San Francisco, in 2006, became the first city to pass a paid-sick-leave ordinance. Just about a year after the ordinance went into effect, the executive director of the Golden Gate Restaurant Association told the Los Angeles Times that his association didn’t have a problem with paid leave and called the ordinance “affordable, considering the public benefit.” Interestingly, this places the association at odds with California’s analogous statewide trade group, which continues to strongly oppose the measure. So, oddly, the branch of the group that isn’t concerned with the effects of the bill is the group that’s already been forced to actually put the mandate in place.

Momentum certainly seems to be growing behind the idea of paid sick leave, which gets a boost from the public-health aspect, in addition to the appeal to workers. In a society increasingly oozing with hand sanitizer and a fair amount of communicable-disease insecurity, mandating that workers receive something that feels fair — paid sick time when they’re genuinely sick — and that will help them not get the flu makes for a pretty compelling argument.

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.