America’s refusal to provide adequate paid sick leave to all workers during the coronavirus pandemic is as American as it gets. In April, I wrote about frontline workers who were begging for donations on GoFundMe, because staying home meant going without pay. Twenty-four percent of American workers — roughly 33.6 million people — have zero paid sick days, and that number jumps to 42 percent in the service industry, which has been hit especially hard by the coronavirus. (The National Restaurant Association has long been fighting against paid sick leave for restaurant employees, claiming it would “have significant impacts on employers’ ability to maintain or resume operations.”)
The inability for sick workers to stay home has become increasingly problematic as more and more people fall ill, and many experience the lasting symptoms of “long COVID,” which can keep them out of work well beyond just a few days. This could be a turning point for paid sick leave in the U.S., but there are many questions that remain unanswered: What are corporations going to do? What can employees do? Will American politicians finally step up to provide workers with the paid sick leave that they deserve?
Some companies have already started doing the right thing, but we still have a long way to go.
The Families First Coronavirus Response Act
In March, Congress passed the Families First Coronavirus Response Act (FFCRA) in an attempt to solve the problem of paid sick leave in America — at least during the pandemic. The act, which expires in 2021, makes employees eligible for two weeks of paid sick leave if quarantined or experiencing COVID-19 symptoms. It also provides 12 weeks of leave paid at two-thirds their regular rate or two-thirds the applicable minimum wage for workers who have to care for children whose schools are closed.
While nice in theory, the reality is that the act excludes all kinds of workers. It exempts employers with more than 500 employees under the (somewhat false) assumption that large companies already provide adequate paid sick leave — that means grocery store chains, meatpacking plants and large home goods stores. Likewise, companies with fewer than 50 employees can qualify for exemptions if providing paid sick leave would “jeopardize the viability of the business,” and you can imagine how a business owner could argue that. Worse yet, many health-care workers are exempt from the act as well, which is just crazy backwards.
“Paid sick leave is the only way all workers in America can afford to stay home when they are sick and not spread the novel coronavirus to others. Yet, in a report released May 14th, the Federal Reserve found that one in five workers still had no paid sick leave in April as the pandemic raged, even after Congress passed an emergency paid sick leave law in March. That’s because Congress exempted large companies — who employ the bulk of the low-wage grocery, retail and delivery workers with no paid sick leave that we’ve come to rely on as ‘essential.’ Seeking to close that gap, House Democrats passed legislation on May 15th to expand sick leave to more workers. Senate Republicans quickly deemed the plan ‘dead on arrival.’”
The Center for American Progress claims that these exemptions mean only 47 percent of private workers will have guaranteed access to coronavirus-related sick leave, even under the new act. That said, you could say the FFCRA is an improvement on the previous sick-leave policies in America, which are both scant and unclear.
The Family and Medical Leave Act, and the Americans With Disabilities Act
Before the FFCRA came into effect, two laws were supposed to guarantee many employees unpaid medical leave. The Family and Medical Leave Act promises 12 weeks of unpaid leave to recover from a major illness or to care for a family member. But again, there are stipulations: It only applies to employers with “at least 50 employees within 75 miles,” which means only about 60 percent of American workers are eligible, and you have to have been at the company for at least a year.
We also have the Americans With Disabilities Act, which says that employees who have a disability deserve an “interactive process” with their employer to decide whether they can take time off or return to work with some changes to their job, like working from home, for example. However, that process doesn’t necessarily guarantee much of anything, and there are more than just a few stories from disabled persons who remain unemployed despite the protections this law should theoretically provide.
Both acts have far fewer protections for part-time workers, and they can still be convoluted in some areas. For example, what happens if an employer claims that an employee was fired for reasons not related to their illness or disability? In almost every state, employment is presumed to be “at-will” under the Employment-at-Will doctrine, which essentially allows employers to hire, fire or discipline an employee for any reason, except an illegal one. But remember, they can always argue their case for your firing in court.
The Heroes Act
At the beginning of the month, the House of Representatives passed a revised version of the Heroes Act, which extends the FFCRA and “expands paid sick days.” However, the Heroes Act will unlikely pass through the Republican-controlled Senate, especially in its entirety. That means, for now, any further changes to how we legally treat paid sick leave in America are up in the air. One thing we do know is that, on his website, Democratic presidential nominee Joe Biden lays out his Emergency Action Plan to Save the Economy, and that includes “emergency paid sick leave to everyone who needs it, with no one left out.” Whether that will come to fruition if he gets elected is unknown, but it’s promising.
The Future of Paid Sick Leave in America
In late August, the Business Roundtable, a group of CEOs from leading corporations, declared that maximizing profits and shareholder value would no longer be their foremost priority. Instead, they promised to work on balancing the needs of shareholders with those of employees, customers, suppliers and local communities. Some companies — Walmart, Uber, Instacart, just to name a few — have already begun this process, bolstering their sick-leave policies, even without all that much pressure from the government.
“Paid sick leave is such a powerful issue,” says Peter Dooley, certified industrial hygienist, and senior health and safety project coordinator at the National Council for Occupational Safety and Health. “It’s an issue that the public has a lot of support for, and for good reason: The pandemic has really demonstrated the connection between worker health and safety and community safety more dramatically than ever before.” He adds, “People are seeing it as the important issue it is.”
However, there are still many, many American workers whose bosses decide whether or not they get to help prevent the spread of a pandemic. “We’re one of the least protective countries in the industrialized world related to this issue,” Dooley explains.
Whether we give those employees that right could very well hinge on what happens on November 3rd.