On November 17, the House Education and Labor Committee held a hearing, “Protecting Employees, Employers, and the Public: H1N1 and Sick Leave Policies.” The hearing focused on the Emergency Influenza Containment Act (H.R. 3991), sponsored by Chair George Miller (D-CA) and Rep. Lynn Woolsey (D-CA). The Senate Health, Education, Labor, and Pensions Committee held a similar hearing on November 10 (see The Source, 11/13/09).
The legislation would provide up to five workdays of paid sick leave per 12-month period to an employee whose employer directs her or him to leave work because the employer believes the employee has symptoms of a contagious illness or has come into close contact with someone who has symptoms of a contagious illness.
The bill would exempt businesses with less than 15 employees and those that already provide five workdays of paid sick leave to their employees.
Rep. Miller said, “Let’s face some simple facts: when you’re struggling to make ends meet you’re going to do everything possible to not miss a day’s pay. The lack of paid sick leave encourages workers who may have H1N1 to hide their symptoms and come to work sick spreading infection to coworkers, customers, and the public.” Speaking in support of the Emergency Influenza Containment Act, he said, “This temporary legislation will slow the advance of H1N1 being spread through the workplace and encourage open communications between employees and their employers on sick leave policies. This emergency measure will not, and should not, supplant the need for comprehensive paid family leave policies. But I believe it will be a circuit breaker needed to get this virus under control, while protecting workers, employers, and the public.”
Ranking Member Joe Kline (R-MN) said, “We all know federal mandates are particularly onerous for small businesses, so it’s important to look specifically at this category of employers as we consider new federal policies. The data tell us that 76 percent of all workers in small businesses with fewer than 50 employees have paid illness leave, while other employers have informal plans for example, granting paid time off for health-related concerns on a case-by-case basis. We must also be mindful of the existing Family and Medical Leave Act [P.L. 103-3], which provides unpaid leave for medical reasons and carries a host of notification and certification procedures of its own. With so many workers already having access to a variety of sick leave options, we need to look very carefully at proposals to add a new layer of federal leave mandates.”
Dr. Georges Benjamin, executive director of the American Public Health Association, said, “While we want to encourage workers to make healthy and rational decisions, when they are faced with the choice of staying home sick without pay or going into work sick so they can put food on the table and pay their mortgage, many workers choose to go to work and ‘tough it out,’ putting their co-workers and their customers at risk. Additionally, if an employee has a sick family member, often a child, the employee has to decide if they should stay home to care for the sick family member and lose pay or, send the child to school or day care so they can go to work. Obviously, sick children should stay at home. However, even caring parents challenged with the decision to pay the bills, or not, may err on the side of sending the child to school, if the child does not appear to be too ill. Sick children are not productive learners, and being in school or day care puts the rest of the community at risk, particularly with infectious diseases like influenza. Employees who are parents should not have to make this choice.”
A. Bruce Clarke, president and chief executive officer of Capital Associated Industries, urged the committee not to adopt the Emergency Influenza Containment Act and noted, “It is important to recognize the broad scope of [leave policies’] impact and the efforts that are already underway by employers to respond to the current H1N1 pandemic.” He continued, “I can say confidently that when it comes to the availability of paid leave from employers for sick leave, the glass is not just half full; it is more than 80 percent full…Today, employers provide dozens of types of benefits that give employees paid leave. Manufacturers in particular have provided generous family-friendly benefits that include leave programs. According to the Department of Labor’s Bureau of Labor Statistics (BLS), nearly all full-time workers have access to paid illness leave. Specifically, the Monthly Labor Report in February 2009 shows that 93 percent of full-time workers and over half of part-time employees have access to paid sick leave.”
Mr. Clarke also expressed his concerns with the proposed legislation, saying, “Federal paid leave policy should encourage employers to provide paid sick leave rather than impose restrictive, one-size-fits-all mandates. Such requirements applied to the broad, diverse industries that make up our nation’s economy negatively impact all employers, especially small businesses, and limit our ability to retain and create new jobs. In many ways, such mandate proposals would actually hinder current efforts by employers. Specifically, the Emergency Influenza Containment Act would place requirements on employers without [providing] comprehensive guidance from the Department of Labor on how to implement them. Additionally, the language of this proposal creates a leave entitlement to employees directed, instructed, or advised by their employer [not to] come into work, or to leave work if they are displaying contagious symptoms. This overly broad definition will make effective implementation by employers difficult. In many workplaces, it may also discourage employers from sending employees home…These proposals lack the necessary clarity for employers to effectively implement [them] and would limit the flexibility employers have to address their workforce needs. Further, these current proposals do not recognize employers that are already providing generous levels of paid leave from any mandated leave requirements. Specifically, they will require employers that provide generous leave benefits through a PTO [paid time off] system to add additional leave on top of their existing benefit mix thus adding costs.”
Debra Ness, president of the National Partnership for Women and Families, highlighted the effect H1N1 flu has had on low-income communities: “Recent data on the impact of the H1N1 virus in Boston…shows that the outbreak has hit certain mostly low-income communities harder than other communities. The Boston Public Health Commission reported that more than three in four Bostonians who were hospitalized because of H1N1 were black or Hispanic. Boston’s experience is not unique. Communities of color all across the country face similar health disparities and they may be due, in part, to the fact that low-wage workers are less likely to have paid sick days…The H1N1 outbreak has come during a painful recession, and both have exacerbated the need for paid sick days. I don’t need to tell you that the economic crisis has been devastating for working families…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.”
During questions, Rep. Donald Payne (D-NJ) asked Rear Admiral Anne Schuchat, M.D., assistant surgeon general and the director of the National Center for Immunization and Respiratory Diseases at the Centers for Disease Control and Prevention, whether the H1N1 vaccine poses any risks for pregnant women. Dr. Schuchat responded, “Based on what we know, the risk [of H1N1] in pregnancy greatly exceeds the risk from the vaccine.” She indicated that the H1N1 vaccine is made the same way as the vaccine for seasonal flu, which has been used safely in pregnant women, and that no “red flags” have been raised from its use.
