‘One-Size-Fits-All’ Paid Leave Mandate Unacceptable, SHRM Says

By By Aliah D. Wright Nov 16, 2009

Elissa O’Brien, SPHR, vice president of human resources for Wingate Healthcare, knows exactly what it’s like to take off from work to care for sick children. Two of her children came down with the H1N1 virus recently and she had to make certain they were cared for.

O’Brien testified Tuesday, Nov. 10, 2009, during a standing-room-only hearing on the proposed Healthy Families Act before the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP). She said that she still believes that Congress should not impose a “one-size-fits-all” mandate forcing employers with 15 or more employees to provide seven days of paid sick leave each year. O’Brien testified on behalf of the Society for Human Resource Management (SHRM).

“We need flexibility in the workplace, not a one-size-fits-all plan filled with regulatory and compliance issues,” she said, noting that there are far too many regulations that might conflict with a new sick leave law. She cited the Genetic Information Nondiscrimination Act (GINA) and the Health Insurance Portability and Accountability Act (HIPAA). GINA protects Americans from discrimination based on information derived from genetic tests; HIPAA protects personal health information.

“One thing I’m also very concerned about with the Healthy Families Act is with the recent GINA and HIPAA regulations. We are going to have to ask people why they are out, and we don’t want to get into a situation where we’re on the other side of the law on those very important federal regulations.”

‘We need flexibility in the workplace,
not a one-size-fits-all plan filled
with regulatory and compliance issues.’

Elissa O’Brien, SPHR

The Healthy Families Act (S.1152), which was introduced in May 2009, remains stalled in committee along with a companion bill in the House (H.R. 2460) introduced by Rep. Rosa DeLauro, D-Conn. Yet another bill (H.R. 3991) addresses paid sick leave for workers with contagious diseases such as H1N1. In this emergency bill, introduced by Rep. George Miller, D-Calif., workers with contagious diseases who are told to stay home by employers would receive five paid sick days. The House Education and Labor Committee was scheduled to hold a hearing on that legislation on Nov. 16, 2009.

In 2008, the U.S. Bureau of Labor Statistics found that only 61 percent of private-sector employees were offered sick pay for their illnesses or injuries and that only 8 percent were offered paid leave for family reasons. Federal law allows unpaid leave for some family needs.

Advocates of a paid-sick-leave mandate, including the Obama administration, argue that many workers are being forced to decide whether to go to work sick or not get paid—a dilemma with particularly acute consequences because the H1N1 pandemic has spread rapidly.

According to the U.S. Centers for Disease Control and Prevention (CDC), by early November 2009, the H1N1 virus reached 48 states and infected as many as 5.7 million Americans. Nearly 3,900 people nationwide had died from the disease—540 of them children. Furthermore, 600 school districts nationwide had closed their doors because of the disease, forcing thousands of working parents to find alternative care. Vaccine shortages continued to plague the nation.

“H1N1 is causing an emergency for workers and families across the country,” said Sen. Christopher Dodd, D-Conn., the committee’s chair. He noted small businesses are losing productivity because of worker illnesses. “This isn’t just a workers’ rights issue—it’s a public health emergency. Families shouldn’t have to choose between staying healthy and making ends meet.”

Seth Harris, deputy secretary of the U.S. Department of Labor, echoed that sentiment.

“It is clear that while much has been done to help prepare for a national health emergency like 2009 H1N1, more is needed to help protect the economic security of working families who must choose between a paycheck and the health of their families,” Harris testified. “That is why the administration supports the Healthy Families Act and other proposals that advance workplace flexibility and protect the income and security of workers.”

Not everyone agreed.

Dissenting Voices

Sen. Mike Enzi, R-Wyo., ranking member of the Senate HELP Committee, warned that mandating paid sick days would further endanger the nation’s economy and would undermine employers’ efforts to protect their employees.

“Many employers are not able to maintain current payrolls, which is evidenced by the rise in unemployment to a 26-year high at 10.2 percent,” said Enzi, a former member of SHRM. “If this bill is enacted, employers will be forced to adjust somewhere either by reducing current health care or retirement benefits or by downsizing their number of employees and adding to the ranks of the unemployed.”

O’Brien concurred.

She testified that Wingate, a nursing facility that operates in New York and Massachusetts, offers a generous paid-time-off plan and has taken steps to address the H1N1 pandemic. Rather than impose another mandate on employers, O’Brien said, Congress should pursue a flexible federal leave strategy that reflects the principles in SHRM’s 21st Century Workplace Flexibility Policy.

SHRM and Wingate state that any federal leave policy should:

  • Provide certainty, predictability and accountability for employees and employers.
  • Encourage employers to offer paid leave under a uniform and coordinated set of rules that would replace and simplify the confusing—and often conflicting—patchwork of regulations.
  • Create 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.
  • Allow for different work environments, union representation, industries and organizational size.
  • Permit employers that meet safe harbor leave standards to satisfy federal, state and local leave requirements.

Aliah D. Wright is an online editor/manager for SHRM.


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