On November 10, the Senate Health, Education, Labor, and Pensions Subcommittee on Children and Families held a hearing, “The Cost of Being Sick: H1N1 and Paid Sick Days.”
Chair Chris Dodd (D-CT) said, “According to the CDC, an individual who comes to work with H1N1 will infect 10 percent of his or her co-workers. Troublingly, more than three-quarters of food service and hotel workers do not have paid sick days. Child care, retail, and nursing home workers are also less likely to have paid sick days. Some 80,000 school cafeteria workers cannot stay home when they are sick, and they come to work to serve approximately 10 million schoolchildren each day. This is simply dangerous. Those most in need are also the least likely to have paid sick days. Only one in four low-wage workers have paid sick days, and they are often most likely to have jobs requiring frequent contact with the public. According to the Bureau of Labor Statistics, only 22 percent of the lowest-income workers have paid sick days compared with 86 percent of some of the highest 25 percent of wage earners.”
After expressing his concerns with the delay in manufacture and distribution of the H1N1 vaccine, Ranking Member Mike Enzi (R-WY) said, “Employers know that if they want to attract and keep good employees they must give them the flexibility they need to care for their own health and their loved ones. Indeed, in the most recent member benefit survey conducted by the Society for Human Resource Management some 86 percent of the respondents reported that their companies provided paid sick leave either under a separate sick leave program, or as part of a general paid time off plan. Over 80 percent of the respondents also indicated that they provide both short-term and long-term disability insurance coverage and an increasing number utilize even more creative approaches, such as paid time off and sick leave banks or pools. The beauty of these creative approaches is that they are responsive to the needs and wants of employees, the changing costs of providing different benefits, and the ability of the employer to provide the benefits while staying in business. In contrast, the type of leave mandated by [the Healthy Families Act (S. 1152/H.R. 2460)] and similar bills…is completely inflexible. It also would add to the practical problems human resource officers deal with every day by importing intermittent leave and medical verification rules, which have proven problematic in other statutes. In addition, this bill provides no deterrents for abuse of the leave entitlements and raises privacy concerns – two issues that employers have found innovative ways to resolve in the absence of a mandate.”
In urging support for her bill, the Healthy Families Act, Rep. Rosa DeLauro (D-CT) said, “Paid sick days have always been a good, common sense idea, but, in light of the recent H1N1 epidemic, it has also become a necessary one. Since H1N1 was first diagnosed and the dangers posed by widespread infection have been recognized, we have seen countless public health officials, and even the president, take to the airwaves to ask folks to follow a simple guideline: If you get sick, stay home from work or school and limit contact with others to keep from infecting them. And yet, following this critical advice is virtually impossible for far too many Americans right now. The president has wisely called a national emergency to deal with H1N1, but in this economy, too many workers cannot answer the call. In fact, the convergence of a deadly contagion like H1N1 spreading in this economic climate could well be catastrophic. Right when more and more workers are feeling economically vulnerable and afraid to miss even one workday, we face an extraordinarily serious health risk that spreads much more quickly if the sick do not stay at home. That is why I am also happy to be working with the chairman on emergency legislation that will address the need to act now on this issue. Our emergency legislation would reflect the core principles of the Healthy Families Act. It would allow workers, not employers, to decide when they are too sick to work and when they are healthy enough to return. It would cover caregiving, so parents can stay home with sick kids without risking their family’s economic security. And it would provide job security for workers who are too sick to come to work.”
Seth Harris, deputy secretary of Labor, said, “In the context of the current 2009 H1N1 pandemic, FMLA [Family and Medical Leave Act (P.L. 103-3)] job protections may be available to relatively few workers who need leave. For example, healthy workers who stay at home to care for their healthy children while schools are closed would not be covered. Additionally, FMLA leave would only be available if the covered and eligible employee’s or family member’s medical condition meets the definition of a “serious health condition.” For example, where the individual with 2009 H1N1 is not hospitalized, the employee or family member would have to receive in-person treatment from a health care provider within seven days of the onset of incapacity and have a second in-person treatment visit within 30 days or otherwise meet a continuing regimen of treatment requirements for the illness to qualify as a “serious health condition,” a requirement that may be difficult to meet if public health officials recommend that the majority of sick individuals not seek medical treatment absent complications. Moreover, even where an employee’s leave is covered by FMLA, this law does not address the problems associated with employees lacking access to pay while on leave. Even in the rare instances when the illness is serious enough to meet these qualifications, this law does not help those who cannot afford to take time off because their employer does not offer paid leave or if they have used whatever paid leave they have. It also does not help those who need to care for their extended family members.”
Elissa O’Brien, vice president of human resources at Wingate Healthcare, testified on behalf of the Society for Human Resource Management (SHRM). Ms. O’Brien detailed Wingate’s Paid Time Off (PTO) policy and its additional efforts to protect its employees from illness. She added, “From SHRM’s perspective, most employers and HR [human resource] professionals are responding appropriately and proactively during this national emergency. While Wingate’s flexible paid time off policy may be an example of an ‘effective practice,’ other employers are doing what they can by relaxing attendance or absenteeism policies, allowing more alternative schedules, promoting telecommuting, or simply addressing employee needs as required. In a poll of its members conducted last May, 67 percent of SHRM members indicated that they either planned to, or were currently sending employees home if they came to work with flu or cold-like symptoms. As the national focus on H1N1 has grown in recent months, we believe that it is highly likely that an even larger percentage of employers have adopted a similar approach…The current flu pandemic illustrates the need for a 21st century workplace flexibility policy that adapts to emergency situations, reflects the nature of today’s workforce, and meets the needs of both employees and employers. It should enable employees to balance their work and personal needs while providing predictability and stability to employers. Most importantly, such an approach must encourage employers to offer greater flexibility, creativity and innovation to meet the needs of their employees and their families.” She added, “Both SHRM and Wingate believe that any federal leave policy should: [p]rovide certainty, predictability, and accountability for employees and employers; [e]ncourage employers to offer paid leave under a uniform and coordinated set of rules that would replace and simplify the confusing – and often conflicting – existing patchwork of regulations; [c]reate administrative and compliance incentives for employers who offer paid leave by offering them a safe-harbor standard that would facilitate compliance and save on administrative costs; [a]llow for different work environments, union representation, industries, and organizational size; [and] [p]ermit employers that voluntarily meet safe harbor leave standards to satisfy federal, state, and local leave requirements.”
In expressing her concerns about the Healthy Families Act, Ms. O’Brien said, “SHRM has strong concerns with the one-size-fits-all mandate encompassed in S. 1152, the Healthy Families Act (HFA)…While the HFA presents a host of practical concerns, I would note four significant challenges with this bill from an HR [human resource] professional’s perspective. First, the HFA, like the current FMLA, prescribes a series of vague and ill-defined qualifying events that may trigger leave eligibility for the employee…Second, although it may not be the intention of the bill sponsors, the HFA would disrupt current employer paid leave offerings…For example, if an employer’s existing paid leave policy fails to meet all the requirements of the act, the employer’s plan would need to be amended to comply with the HFA requirements. In addition, it is unclear how the HFA’s paid ‘sick’ leave requirement would impact paid time off plans, programs that are growing in popularity…Third, the HFA specifically states that the act does not supersede any state or local law that provides greater paid sick time or leave rights, thus forcing employers to comply with a patchwork of varying federal, state and/or local leave laws – as well as their own leave policies…Finally, the HFA’s inflexible approach could cause employers to reduce wages or other benefits to pay for the leave mandate and associated compliance costs, thereby limiting employees’ benefit and compensation options. This is because employers have a finite pool of resources for total compensation. If organizations are required to offer paid sick leave, they will likely ‘absorb’ this added cost by cutting back or eliminating other employee benefits, such as health or retirement benefits, or forego wage increases, a potential loss to employees who prefer other benefits rather than paid sick leave.”
“Especially during this epidemic, workers with caregiving responsibilities in particular have an urgent need for paid sick days,” said Debra Ness, president of the National Partnership for Women and Families. “The highest H1N1 virus attack rate is among five- to 24-year olds, many of whom need to stay home from school when sick – often with a parent to care for them. That’s why the lack of paid sick days is particularly challenging for working women – the very people who have primary responsibility for most family caregiving. In fact, almost half of working mothers report that they must miss work when a child is sick. Of these mothers, 49 percent do not get paid when they miss work to care for a sick child.” Ms. Ness added, “Paid sick days aren’t just about protecting the public’s health – they are also about protecting the economic security of millions of workers and their families…Five out of six workers (84 percent) say the recession and the scarcity of jobs are creating more pressure to show up for work, even when they are sick. Workers are understandably anxious about their job security, and many are unable to take any risk that might jeopardize their employment – even if they are stricken with H1N1. Especially now, when so many workers are suffering terribly, we must put in place a minimum labor standard so taking time off for illness doesn’t lead to financial disaster. Workers have always gotten sick and always needed to care for children, family members and older relatives – and they have always managed to be productive, responsible employees. But without a basic labor standard of paid sick days, families’ economic security can be at grave risk when illness strikes.”
Rear Admiral Anne Schuchat, MD, assistant surgeon general and director of the National Center for Immunization and Respiratory Diseases at the Centers for Disease Control and Prevention; Dr. Scott Gottlieb, resident fellow at the American Enterprise Institute; and Desiree Rosado, a member of Moms Rising, also testified.
