Coronavirus has laid bare the extent to which the failure of our nation to require paid sick leave has now endangered all of us. Congress needs to urgently pass paid sick leave laws, but states and cities must not wait for that and take action now. In some jurisdictions, this may require making compromises, such as a sunset provision or some aid to small employers.
Americans have long been laboring while sick, potentially passing illness to colleagues and the public, because they fear getting fired for missing work and cannot afford unpaid leave. According to the Federal Reserve, almost 40 percent of people cannot cover a $400 unexpected expense. Being present is not the result of our work ethic on overdrive. It is usually caused by a power disparity leaving workers at the mercy of employers.
In recent years, nearly a dozen states and almost two dozen cities across the nation have passed paid sick leave laws, typically requiring employers to provide about five days, accrued over time, as well as protection from retaliation. Most employers have actually found these laws to be, in the words of one report, no big deal to follow. Some even press for change, like the Maine bakery owner who explained, “It does not make sense for me to force a sick baker to come to work and sneeze all over our bread.”
These laws work. A 2017 study compared jurisdictions with and without mandates, finding that cold and flu disease rates decreased after workers gained access to paid sick leave, declining as much as 40 percent during flu season. In light of coronavirus, many commentators have noted that the lack of paid sick leave makes us particularly vulnerable. The pressing question is, given our current political realities, how to get all this done.
Congress should pass a law requiring employers to provide up to three weeks of paid sick days, or longer if the person is still contagious, with protection from retaliation. But states and cities, including those already requiring five paid sick days, should not wait. They need to immediately pass laws requiring paid sick leave to protect their people and diminish the spread of disease. In places where this seems impossible, lawmakers could consider sensible compromises, like a sunset provision. The newly enacted paid sick leave requirement would expire upon the end of the pandemic or after a set period of time with the possibility of extension.
This approach could work since it avoids the thorny battles inherent in broad range policymaking. Paid leave advocates would prefer a lasting solution, but a short term provision would be a start. Moreover, proof of such a concept could lead some lawmakers or employers to extend the policy. Business associations typically oppose paid leave obligations, which is an utterly irresponsible position right now and contrary to the beliefs of their own members, but a time limit might lessen resistance.
But who would pay for it, especially as many businesses are struggling? Many employers would not even feel a pinch since they already voluntarily provide paid sick leave, and a growing number are probably now joining them. Any legal requirement would affect the bottom line of those limited number of adamant employers outside of these groups. It is in the interest of employers to provide paid leave, as one sick employee at work can lead to many more. Further, from a more high level perspective, limiting the spread of coronavirus will reduce the negative impact on the economy.
Yet some small or struggling businesses still could not shoulder the cost. While employers should not generally receive public subsidies simply to provide decent working conditions, this could be an unusual moment to consider temporarily spreading the financial burden. How might we do all this? Perhaps through a tax credit, public grant, low interest loan, or other subsidy program for small businesses or those with demonstrated need. One existing model to use is the federal work opportunity tax credit that incentivizes the hiring of employees from groups facing barriers to jobs.
Coronavirus illustrates the harm of allowing large companies, including those in the gig economy, to misclassify their workers as independent contractors instead of employees. We also need a sustainable solution to this, but there is an immediate need. Drivers, delivery workers, and house cleaners interact with the public, leading to higher than average potential exposure and spread. They need paid leave to stay home while sick. One approach to consider is the Massachusetts paid family and medical leave law, which covers businesses that use 1099 forms, indicating independent contractor status, for over 50 percent of the labor force across the state.
Ideally, our nation would have had robust paid sick leave laws long ago. But this is not a perfect world. Congress should take action, as should states and cities. If they need to make imperfect compromises, like a sunset provision or subsidy program, they should not hesitate to do so. After all, what is worse, an imperfect solution or a paralyzing pandemic?
Terri Gerstein is director of the State and Local Enforcement Project at the Harvard Labor and Worklife Program. Follow her on Twitter @TerriGerstein.