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You are here: Law & Politics Legal Trumping state sluggishness on sick leave?
Few diners likely realize that the person serving their food has few, if any, sick days. The same goes for nannies, teacher’s aides, Uber drivers, and other low-skill employees—rarely do their positions come with paid sick leave, forcing them to work even when ill. Combine sick workers and direct contact with the public, and the lack of paid sick leave becomes a problem for everyone else as well.

“The restaurant industry, retail, home health care are all sectors that lack paid sick days and lack any sort of legal protections,” said Sherry Leiwant, co-president and founder of A Better Balance: The Work & Family Legal Center, an advocacy group dedicated to pushing paid sick leave laws across the country. “One of the big pushes in getting these laws passed is educating people about the fact that so many in their communities lack paid sick time, making this a public health as well as a labor rights issue.”

Federal law does not currently require employers to provide sick days to employees.

Recognizing the problem, a small but growing number of cities and states have passed paid sick leave laws over the past decade. Connecticut became the first state to pass a paid sick leave law in 2011, and California followed in 2014. Most recently, Maryland passed a sick leave law at the end of 2016, making it the eighth state in the nation to do so. And although states sometimes move slowly to act on this issue, municipalities can pick up the mantle and pass measures themselves—Washington, D.C., passed a sick leave measure in 2016 that requires employers to provide time off based on an employee’s accrued number of hours worked; Seattle and Tacoma, Washington state, have similar statutes on the books.

Backers see paid sick leave as a non-partisan issue, and many believe that President Donald J. Trump supports the idea, even though he has not publicly proposed any measures to provide sick leave at the federal level (Trump, as a candidate, did propose a maternity leave plan).

“I expect the administration eventually will propose some kind of paid leave program,” said Tom Spiggle, an employment and immigration rights lawyer who founded Spiggle Law Firm after stints as an assistant U.S. attorney and legislative aide on Capitol Hill. Spiggle also is the author of You’re Pregnant? You’re Fired” Protecting Mothers, Fathers, and Other Caregivers in the Workplace, which explains expectant mothers’ employment rights.

Leiwant, meanwhile, points to successful sick leave ballot initiatives that passed in deep-red locales.

“In Arizona, in November 2016, a paid sick days and minimum wage ballot initiative passed by 17 percentage points at the same time Trump was beating [Hillary] Clinton by 4 percentage points and winning the state,” she said, adding that Arizona’s experience is not unique, but highlights the issue’s popularity.

Sick days for me, not for thee

White collar professionals tend to receive paid sick leave benefits through their employers. In fact, about 60 percent of the American workforce has access to sick days, although use often is restricted to personal illness.

“I think most people in higher paying, white collar, and professional jobs have no idea that 40 percent of the American workforce have not a single paid day they can take if they or a family member are sick—and there are some people with paid sick time who are not supposed to use them for family members,” Leiwant said.

So, who’s left out? Mostly blue collar workers and service employees, said Stephen J. Rose, Ph.D., a research professor and labor economist at the George Washington Institute of Public Policy at The George Washington University.

“Certainly, most highly paid employees are likely to have these benefits because they are part of their standard employee packages,” Rose told The Suit Magazine via email. “These policies help lower paid workers in service and retail jobs.”

Proponents of paid sick leave, however, say that even the current policies covering highly paid workers fail to go far enough. Even white collar professionals with generous sick leave packages can be restrained from spending those days if they aren’t sick, but their children are.

“With women now 50 percent of the workforce this is a problem as there is no one at home to care for a sick child,” Leiwant said. “The lack of paid sick time is part of the erosion of quality jobs in both pay and benefits and the growth of jobs in sectors that do not traditionally provide benefits.”

Currently, several municipalities allow family to be covered under local sick leave laws. Tacoma, for example, allows employees to spend sick days on children, parents, or grandparents. The Tacoma measure also lets employees take sick leave if their child’s school is temporarily shutdown by health authorities.

How paid sick leave works

The sick leave law landscape is complex, with each state and city setting its own rules for how time off can be calculated.

Paid sick leave laws typically use a formula that provides days off in exchange for hours worked. For example, California employees—including part-timers, so long as they work a minimum of 30 days in the year—must accrue at least one hour of sick time for every 30 hours worked. Golden State employers can cap sick leave at 24 hours, or three work days. In Connecticut, meanwhile, employees earn one hours of sick leave for every 40 working hours, but employers can provide up to five leave days. Vermont requires employers to offer sick leave at a one hour for every 52 worked ratio.

Localities vary regarding which employees must provide sick leave. California’s law covers everyone in the state, with certain unionized employees, air carrier workers, and in-home service providers exempted. Washinton, D.C., however, sets a sliding scale for benefits, with firms employing more than 100 people required to offer one hour of leave for every 37 worked, but companies with a 25-99 person payroll mandated to provide one hour of sick time for every 43 on the job (employers with fewer than 25 workers must offer one hour of leave in exchange for every 87 worked), according to Workplace Fairness, an employment rights advocacy group. Massachusetts, in comparison, applies its sick leave law to any firm employing more than 10 people.
Paid sick leave laws often take criticism from pro-business groups, who claim the measures increase costs, which are then passed on the consumer. George Washington’s Rose, however, described those increases as unlikely due to the low cost of providing sick leave, and said that even if costs do rise, the overall effect on prices will be small.

Trumping state inaction?

President Trump’s views on paid sick leave remain unclear. The president endorsed paid family leave during his first speech to Congress in February, but has remained mum on sick leave.
As a candidate, Trump proposed a six-week paid maternity leave policy that did not cover fathers, Spiggle said. But, Trump’s comments to Congress, specifically his use of the word “parents” instead of “mothers,” led some pundits to question whether Trump’s view had broadened since his candidacy.

“The question remains whether President Trump is committed enough to the issue to expend political capital on paid family leave, especially given that many in the Republican party will not support government mandates to provide paid leave,” Spiggle said. “There is also a question about what President Trump actually supports.”

Leiwant and Rose, however, are pessimistic.

“The current administration and Congress is hardly labor-friendly, so it will require a big shift to the Democrats for this to be even conceivable,” Rose said.

Leiwant described the chances for a federal sick leave measure as “slim” given the political climate in Washington. She noted that the health Families Act—which includes a sick leave provision—has been introduced into each session of Congress over the past decade, but has never had a Republican co-sponsor. Leiwant places her bets on more states adopting sick leave measures, and her group recently has rallied behind a bill moving through the Rhode Island legislature. Other measures under consideration in Albuquerque and Westchester County, New York, could pass soon, she added. 

“It's a popular issue—people see it as something that should be a basic right of all workers,” Leiwant said. “Especially in cities, see the clear public health implications of low wage workers who need every dollar to live on not being able to take time off when they are sick.”

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