House Committee Examines Paid Leave Legislation
On June 11, the House Education and Workforce Subcommittee on Workforce Protections held a hearing on the Healthy Families Act (H.R. 2460) and the Family Income to Respond to Significant Transitions Act (H.R. 2339). Both bills aim to provide employees with paid sick leave for medical and family leave purposes.
Sponsored by Rep. Rosa DeLauro (D-CT), the Healthy Families Act (H.R. 2460) would require employers to permit their employees to earn up to 56 hours of paid sick leave per year in order to take care of themselves or family members.
Specifically, employees would be permitted to accrue sick leave to use for their own physical or mental illness, injury, or medical condition; to obtain a professional medical diagnosis, care, or preventive care; or to care for a child, parent, spouse, other “individual related by blood or affinity” who meets the above-mentioned criteria. Employees who are, or whose family members are, victims of domestic violence, sexual assault, or stalking may use the leave to seek medical attention and recover from physical and/or psychological injuries.
The Family Income to Respond to Significant Transitions (FIRST) Act (H.R. 2339), sponsored by Chair Lynn Woolsey (D-CA), would authorize $1.5 billion over FY2010-2013 and such sums as necessary afterwards, to require the secretary of the Department of Labor to award grants to states to pay for the cost of carrying out wage replacement programs for individuals taking leave “to respond to caregiving needs resulting from the birth or adoption of a son or daughter” or for other purposes recognized under the Family and Medical Leave Act (FMLA) (P.L. 103-3).
States would use the funds for outreach or education programs, to cover the costs of partial or full wage replacement, administrative costs, or to provide incentives to employers not covered by the FMLA to provide benefits. The program would provide eligible individuals with no less than six weeks of partial or full wage replacement directly, via a state insurance program (e.g., temporary disability insurance or unemployment benefit), private insurance or disability plan, or another mechanism as determined by the state.
“The Family and Medical Leave Act (FMLA) [P.L. 103-3] that provides unpaid job-protected family and medical leave is virtually the only national leave policy, said Rep. Woolsey.” I was a new Member of Congress when we passed the FMLA over 15 years ago. At the time, it was a great achievement, and over the years we have learned a lot. While more than 100 million leaves have been taken under the FMLA, most workers can’t take advantage of its provisions because they cannot afford to take unpaid leave. And because -- in the case of illness -- leave is permitted only for a serious medical condition, ordinary sick leave is not permitted…Currently, millions of workers go to work when they are sick, because they simply cannot afford to lose pay or in some cases their jobs. This is not only bad for workers and their families, but also for employers.”
Ranking Member Tom Price (R-GA) said, “What I urge this committee to do is to keep facts about the current workforce in perspective. The Bureau of Labor Statistics [BLS] reports that in 2008, 93 percent of full-time employees were provided paid time off that could be used in the event of an illness, and 51 percent of part-time workers had paid illness leave. In 2008, 79 percent of low-wage workers, and by that I mean folks making between $7.25 and $14.99 an hour, had paid illness leave. Last year, 94 percent of large employers offered paid leave that could be used for illness, as did 76 percent of small businesses, meaning those with less than 50 employees. The facts suggest that we should not be imposing costly and new one-size-fits-all burdens on businesses based on any faulty assumptions about the workplace.”
Rep. Rosa DeLauro (D-CT) testified in support of H.R. 2339, and on behalf of her bill, H.R. 2460. “The absence of a national paid sick days policy today affects countless families and workers and this hearing is an important sign of progress on their behalf…It is about keeping our businesses and workers strong -- and helping to maintain their edge in a tightening global economy. But, we also know, it is hard to stay ahead when 19 of the 20 most competitive countries in the world guarantee paid sick days -- and the United States is the odd one out. What does it say when Lesotho and Papua New Guinea are implementing paid sick days to give their businesses and their entire nation a competitive edge, yet America still does not get it?”
Debra Ness, president of the National Partnership for Women and Families, praised the FMLA, but also noted its shortcomings, “Currently, only one federal law helps our nation’s workers meet the dual demands of work and family: the Family and Medical Leave Act (FMLA). It provides unpaid, job-protected leave for up to 12 weeks a year for covered workers to care for a newborn, newly adopted or foster child, to care for a seriously ill family member, or to recover from their own serious illness. The FMLA provides essential job protections that can allow workers to take the time off they need without losing their jobs. Laws like the FMLA could not be more important during an economic downturn, and more workers need access to the protections the FMLA affords. However, I want to address two main weaknesses of this law, both of which would be addressed by the legislation this subcommittee is considering.” Ms. Ness continued, “First, the FMLA does not address many workers’ day-to-day health needs. FMLA coverage for illnesses is limited to serious, longer-term illnesses and the effects of long-term chronic conditions. The law does not offer time off to deal with common illnesses that do not meet the FMLA standard of 'serious' illness. It also does not offer time off for routine medical visits. Second, the FMLA offers unpaid leave. Millions of workers cannot afford to take the unpaid leave the FMLA provides. Without some form of wage replacement, the FMLA’s promise of job-protected leave is out-of-reach for millions of women and men. In fact, in one survey 78 percent of employees who qualified for FMLA leave and needed to take it did not do so because they could not afford to go without a paycheck. More than one-third of the men and women who use the FMLA (34 percent) receive no pay during leave, and another large segment of the population has a very limited amount of paid leave available.”
Victoria Lipnic, former assistant secretary for the Department of Labor, spoke on behalf of the U.S. Chamber of Commerce and outlined several of the Chamber’s concerns with H.R. 2460. “First, it is certainly true that the Healthy Families Act [HFA] has laudable goals…Secondly, it is also true, however, that the Healthy Families Act would impose a new federal mandate of unprecedented scope on very small business establishments. It would do so at a time of serious economic stress and severe, continued job losses. It would come with a cost in the form of reduced wages and job opportunities. It would come at a time when employers are considering every option available to them, including reducing hours, shifts, benefits, contributions to retirement funds, to avoid either any or further layoffs. And it would do so in the face of evidence that a majority of employees in the United States can access paid leave when they have an illness. A February 2009 report by economists from the U.S. Bureau of Labor Statistics, published in the Monthly Labor Review, provides important new information and insights that are critical to the debate about whether a federal mandate to require paid sick leave is needed. In that new report, the BLS economists found that when looking at leave benefits provided by employers in combination -- that is, not just paid sick leave, but including other types of paid leave (such as personal leave) for which employees can use the leave for their illness or to visit a doctor -- 83 percent of workers in private industry have access to illness leave. This is despite the fact that paid vacation leave, holidays, and sick leave are among the most expensive benefits offered to employees in private industry…Third, the HFA is inexplicably punitive on employers who already offer paid leave benefits. The HFA removes the discretion of employers to design benefits which best meet the needs of their employees and their operations. Employers provide leave benefits as a recruiting and retention tool, as a market differentiator, as part of a total compensation/total rewards package, but have the ability to take into account how the benefits are structured. Under the HFA, employers who are already providing these benefits would be subject to a new regulatory regime, additional compliance and recordkeeping costs, and litigation for alleged violations of the law. They would be subject to liquidated damages that are awarded, in an unprecedented fashion, as a matter of course, with no good faith defense and no discretion from the courts. This is for people who already provide paid leave benefits…Finally, we know from years of experience, commentary, and observation about the use of the Family and Medical Leave Act that different workplaces experience the use of leave very differently. In some workplaces it may be essential that everyone be there on time in order to start the shift or run a particular piece of machinery. The loss of one person to that shift may be critical to the start of an entire production line or transportation system. That is very different than a workplace setting where the start time of an individual or individuals is not critical to the completion of that day’s work or project.”
Rep. Alan Grayson (D-FL); China Miner Gorman, chief operating officer for the Society for Human Resource Managers; Deborah Frett, chief executive officer of Business and Professional Women’s Foundation; Rajiv Bhatia, director of the Occupational and Environmental Health Department of Public Health in San Francisco; and Sandra Poole, deputy director of the California Employment Development Department Disability Insurance Branch, also testified.