April 2, 2020
This piece has been updated since it originally appeared in Medium.
On April 1, millions of U.S. workers gained access to paid sick leave, family care leave, and more generous unemployments payments as a result of the Families First Coronavirus Response Act (FFCRA)—enacted on March 18—and the Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted on March 27.
With the implementation of FFCRA, some workers—for the first time, and through the end of 2020—will have emergency access of up to 10 paid sick days to address personal or family health issues, and to care for a child whose school or place of care is closed. And as a result of the CARES Act, some workers without paid sick time or paid family and medical leave will be able to access new Pandemic Unemployment Assistance (PUA) through the end of 2020 when they become unemployed, partially employed, or unable to work because of a personal or family illness, quarantine, or closure of a child’s or adult’s place of care. Both of these new laws uniquely recognize the need self-employed people and workers in the “gig” economy have for compensation for lost work time due to illness or care needs.
These are historic and necessary improvements to U.S. labor and employment laws, but Congress’s work is not nearly done. The FFCRA and CARES Acts were first steps, but they must not be the last.
Here are some of the shortcomings: Only about half of the workforce gained paid sick days, and within that half, only parents whose children are out of school or child care gained access to extended emergency leave. And, unfortunately, even within these covered groups, small employers (businesses with less than 50 employees) may exempt themselves from the school leave provisions, and employers of health providers and emergency responders may exempt their employees from any of these new leave entitlements. PUA is a temporary stopgap for the holes in paid sick days and paid family and medical leave available to workers, and it isn't a substitute for these protections. Additionally, it requires state action in order to be put into effect, puts further burden on state unemployment systems (which are currently facing historically unprecedented demand), and does not serve undocumented workers, who should be able to care for their own health and their loved ones just like any other worker.
Coronavirus has shown us what advocates have long argued: Paid sick days and paid family and medical leave protections should have been in place nationally years ago. This pandemic has laid bare the weakness in our country’s outlier approach to leaving workers subject to their employer’s generosity. Tying benefits and rights to this “boss lottery” privileges higher-paid, higher-skilled workers who can negotiate for better benefits and make informal arrangements with their managers. It also disadvantages women, people of color, and people in hourly, lower-wage jobs, who are less likely to have access to paid leave but are often more likely to bear care responsibilities. As Pronita Gupta and Tanya Goldman at CLASP presciently wrote last fall, these are the workers most at risk in “the next recession.” Unfortunately, that next recession—or worse—is now upon us.
Paid sick days and paid family and medical leave policies are critically important for families' health and economic security—especially now, when it is vital that people stay home to limit the spread of disease. Helping workers and employers maintain a connection despite temporary closures or departures from the workforce is especially important for the post-crisis ramp-up of operations. Indeed, state and local efforts over the past decade show that paid leave and paid sick days have positive effects, and few drawbacks.
If the economic and public health case doesn't convince policymakers, maybe the political case will. There is mounting evidence that members of Congress should expand access to paid sick and family leave for their own survival. More than two-thirds of voters (68 percent), including 55 percent of Republicans, are concerned that Senate Republicans voted to block universal paid sick and family leave during this crisis. According to Lean In/Survey Monkey polling, more than two-thirds of adults (68 percent) say they will reward elected officials who support expanded access to paid sick days. Only a tiny share of voters (6 percent) say they would be less likely to support a member of Congress who votes to expand access.
And polling has long shown high levels of support for permanent policy solutions that guarantee workers access to paid sick leave and establish a national paid family and medical leave insurance program modeled on successful state policies. Once this crisis has passed, voters may hold politicians accountable for their inaction in adopting these policies—and the subsequent havoc wreaked by the pandemic.
Fortunately, House Speaker Nancy Pelosi has put expanding emergency paid leave protections on her priority list for Congress’s next response package. The key elements of the PAID Leave Act, introduced earlier last month by Senators Patty Murray and Kirsten Gillibrand and Representative Rosa DeLauro as a response to COVID-19, is a good starting place. Compared to the FFCRA, the PAID Leave Act includes more robust emergency paid sick days and paid family and medical leave protections. It would cover all workers and employers and recognize a wider range of personal health and family care needs, consistent with workers’ range of experiences in self-isolating, quarantining, and care. Post-crisis, the PAID Leave Act would also establish ongoing employer obligations to provide earned paid sick days and create a new national paid family and medical leave insurance program, so the country won’t be caught flat-footed again.
At a minimum, here’s what Congress must do in its next relief package to give all workers immediate access to these vital policies:
1) Paid sick days must be available to all workers, not just those in smaller businesses. About half of the workforce—any worker in a company with more than 500 employees—has been excluded from the FFCRA's paid sick days provisions. These workers must be included in the next emergency package. In the 10 days since the FFCRA's passage, journalists have exposed painful stories of workers afraid to lose their jobs or forced to work while sick in big box retail stores, grocery stores, restaurants, and more. According to Lean In/Survey Monkey polling, adults in the United States overwhelmingly believe these workers, as well as child care workers, health providers, and emergency responders, should have access to emergency paid sick days.
While some companies not covered by the law have voluntarily adopted new policies, most have not. Even companies that have adopted new policies may require a COVID-19 diagnosis before workers can use them—a barrier that may be impossible in a time of limited testing availability and long wait times for results—or impose a lengthy delay before workers can be paid. This leads to unacceptable health risks for workers and the communities they serve, at a time when social distancing and self-isolation are our best weapons against COVID-19.
2) Paid sick days should be reimbursed at 100 percent of a workers’ wages—whether they're caring for themselves, caring for a loved one, or dealing with a school closure. FFCRA created a two-tiered reimbursement system for workers, with 100 percent of wages paid to workers dealing with their own health issue (up to $511/day) and two-thirds of wages paid to workers caring for a loved one or a child who is home because of a school closure (up to $200/day). This reimbursement differential will be confusing for workers and employers with respect to notice, record-keeping, and payments due. It also incentivizes workers who need their full paycheck to leave loved ones in unsafe conditions (exacerbating health systems costs if their condition deteriorates), to force distance-learning older siblings to care for younger ones, or to entrust caregiving to people outside the home, which undermines social distancing directives.
This caregiving discrepancy is particularly harmful to women, who are typically the default caregivers in their families. Coronavirus provides a unique opportunity to mix up the gendered balance of care in two-parent, opposite-sex households; Congress shouldn’t create economic incentives that will calcify gendered caregiving norms. At a time when the country is spending trillions of dollars to address coronavirus, topping workers up to 100 percent pay should be the least of our cost concerns.
3) Emergency paid family and medical leave must actually cover all people and families. Shockingly, the “extended paid FMLA provisions” in FFCRA don't actually address serious personal and family health needs, as the FMLA does. (FMLA provides 12 weeks of unpaid, job-protected leave for workers who need to address for their own serious health condition or care for a parent, spouse, or child with a serious health condition; for parents caring for newborn, adopted, or foster children; and for certain military caregiving purposes.) FFCRA's extended FMLA provision only covers parents whose child’s school or place of care is closed, or whose caregiver is unavailable due to the public health emergency. Everyone else—for example, a worker whose quarantine extends beyond 10 paid sick days, an adult child caring for a parent who is ill, or a parent caring for an ill child who then gets COVID-19—is excluded.
The House of Representatives’ initial proposal—and the House’s original strongly bipartisan vote on H.R. 6201—included much more comprehensive paid FMLA. Republicans insisted on eviscerating that provision as part of the House’s “technical corrections.” Caring for loved ones and protecting our own health is no technical matter. Right now, it is literally a matter of life and death for many, and unpaid leave would jeopardize housing, food, and utilities payments for many more.
4) Health providers and emergency responders should have an absolute right to paid sick days and extended paid family and medical leave, just like everyone else. As part of the “technical corrections” package, FFCRA included unacceptable exemptions for the heroes of this crisis: the health providers and emergency responders jeopardizing their own health every day to care for others. While it’s true that hospitals, clinics, fire stations, and EMT services need workers to show up, we need these workers to be healthy, with family members who are cared for. We must give them the time they need—for their own sakes and for the people they help and treat.
5) Small business exemptions should be removed. FFCRA allows the Secretary of Labor to exempt businesses with less than 50 employees from providing parents with school closure leave under both the paid sick days and extended paid leave provisions in the law. And Department of Labor regulations construe this exemption with complete deference to employers, requiring only that they self-certify that they qualify. However, nothing in FFCRA makes child care more readily available to workers in exempt businesses (or to health providers or emergency responders who can be excluded). To meet the concerns of small businesses, the CARES Act made available a pathway for advance sick leave and family leave credits for businesses with less than 500 workers; it also removed penalties for nonpayment of taxes for companies that expect the cost of emergency paid sick days and school closure leave to exceed their tax liability. In light of these CARES Act provisions, Congress should immediately eliminate the small business exemption in FFCRA so that all workers will be able to take care of children whose school or care center has closed.
Our country is at a crossroads in its response to COVID-19. Half-measures have the potential not only to leave practical gaps that jeopardize individual and community security, but to reinforce the idea that government policies don't work for the people. We must do better for workers on the front lines and the communities they serve. We must be thoughtful about how we recover—and aim to build a more equitable, inclusive, and prepared economy after the worst of this pandemic has passed.
To take action:
- CALL CONGRESS: Working people across the country are suffering during the #COVID19 crisis—but some members of Congress are prioritizing big businesses over families. Click here to let your members of Congress know you want #paidleave and #paidsickdays for all. https://p2a.co/T2AOwF3
- SEND a message directly to legislators and tell them to fix the gaps in the Families First Act. America’s workers need permanent #paidsickdays and #paidleave—and not just for COVID-19. https://bit.ly/33gN7rr
For more information on FFCRA provisions, which went into effect on April 1:
- U.S. Department of Labor Guidance for Employees
- U.S. Department of Labor Guidance for Employers
- U.S. Department of Labor FAQ
- US DOL Temporary Rule
- IRS/Treasury/Labor FAQ for Employers
State and local paid sick days laws, which may provide additional protections:
Special Unemployment Insurance Protections: