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Flu, Sick Days and the Law

posted on Wed, Feb 16 2011 10:39 am by Andy Baker-White

Sick Days

People often don’t realize that even a brief encounter with a coughing store clerk exposes them to the flu.  Each year, approximately 5 to 20 percent of U.S. residents get the dreaded disease, and more than 200,000 flu victims are hospitalized.  From 1976 to 2006 annual flu-related deaths ranged from 3,000 to 49,000.

To help prevent the spread of flu the Centers for Disease Control and Prevention (CDC) recommends those who are sick limit their contact with other people, which can mean several days of staying at home from work.

Unfortunately, sick employees find it difficult to follow the CDC’s recommendation to stay home.  Staying home from work can result in losing wages or even one’s job, so sick employees may have to choose between financial security and spreading the flu.  One solution to this problem is to offer employees paid sick leave, allowing them to stay home without risking their income or the health of others.  During pandemics, paid sick leave helps state and local government avoid more drastic actions – like isolation and quarantine - and allows businesses and schools to remain open.

While many employees are offered paid sick leave, over 40 percent of all private-sector employees do not receive paid sick days.  In a 2008 survey by the University of Chicago’s National Opinion Research Center, 11 percent of respondents reported losing a job after taking time off from work for an illness, while 13 percent said they were told they would be fired or suspended if they missed work due to illness. The survey also found that of those who didn’t receive paid sick leave, 68 percent went to work with a contagious illness.

Some cities have enacted local ordinances mandating paid sick leave.  In 2006, San Francisco voters approved a paid sick leave ordinance (PSLO) that gives employees one hour of sick leave for every 30 hours worked.  At businesses with 10 or fewer employees, employees can accrue up to 5 days a year; at larger businesses 9 days a year can be accrued.   In 2008, Washington, D.C. enacted its own PSLO.  The Accrued Sick and Safe Leave Act of 2008 also created a tiered accrual system for employees at businesses of varying size.  In addition to sick leave, the D.C. ordinance provides “safe days” for victims of domestic violence, sexual assault or stalking.

After Milwaukee voters approved a PSLO in 2008, the ordinance was quickly challenged in state court.  Opponents sought to invalidate the PSLO by arguing, among other things, that the ordinance exceeded the city’s police powers and was preempted by state and federal law.  The lower court rejected the preemption argument but found the PSLO’s provision of paid leave for victims of domestic violence, sexual assault and stalking exceeded Milwaukee’s police powers.  After that ruling, the case made its way to the Wisconsin Supreme Court but was sent back to the Court of Appeals in October 2010.  Further decisions are being awaited.

More cities are  considering paid sick leave as a way of preventing the spread of communicable disease (e.g.,  New York City and Tacoma, Washington).  Time will tell how widely paid sick leave ordinances will be adopted.

Until then, just remember that the flu bug is non-refundable.

This information was developed by Andy Baker-White, assistant director for the Network for Public Health Law – Mid-States Region at the University of Michigan School of Public Health.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

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