This video, from CELA member Erin Pulaski, provides legal information about receiving paid time off if you need to care for a loved one experiencing symptoms of the new coronavirus.
To help workers struggling during the COVID-19 crisis, the California Employment Lawyers Association (CELA) is creating a series of videos explaining workplace rights and resources. We want California residents to understand their options.
Erin Pulaski has been consistently recognized for her advocacy on behalf of employees and executives. From 2015 to 2019, she was named one of the Top Women Attorneys in Northern California by San Francisco Magazine and recognized as a Super Lawyers “Rising Star” (a distinction given to no more than 2.5% of lawyers in the state). She has achieved the highest possible rating of “Superb” on Avvo.
Erin represents employees and executives in all aspects of employment litigation, including wrongful termination, discrimination, retaliation, harassment, wage and hour, and unpaid commission claims. She represents clients in both state and federal court, in arbitration, and through trial and appeals. She also handles confidential prelitigation negotiations on behalf of clients. Read more: https://rezlaw.com/erin-pulaski/
Worries about job security and
remaining healthy at work are heightened for pregnant moms and new parents during
the COVID-19 pandemic. While it is a public health emergency, not all employers
are taking the same steps in how they alter business, leaving uncertainty for
some employees. Here we answer frequent
questions about parental leave for California employees in the midst of the
outbreak
Q. Can I demand to work remotely if I’m afraid of getting
the new coronavirus in the workplace?
A. Under California’s Pregnancy Disability Leave law, if you work for an employer with at least 5 employees, you are entitled to reasonable accommodations for a condition related to pregnancy, childbirth, or a related medical condition. If your health care provider advises that you need to work remotely to protect your health or pregnancy and you can perform the essential functions of your job, your employer will need to grant your request. If you are unable to perform the essential functions of your job remotely, then your employer does not need to accommodate your request but will be required to either temporarily transfer you to a position that will permit you to work remotely for the time you are affected by pregnancy or provide you with a job-protected leave of absence.
Following Governor Newsom’s March 19, 2020 “Stay at Home” Executive Order, many employers are taking steps to facilitate remote work. If your employer already has put measures in place for employees to work from home, you may request the same accommodation if those measures can be applied to your job.
Q. Can I take a leave of absence during my pregnancy if
I’m afraid of getting COVID-19?
A. During the time of COVID-19, pregnant women
may be advised by their doctor to work remotely or, if this is not possible, to
take a leave of absence. If your doctor recommends that you take a leave of
absence because you are disabled by pregnancy, childbirth, or a related medical
condition, you are entitled to up to four months of job-protected leave. If your pregnancy-related disability extends
longer than four months, you may be entitled to more than four months of leave
as a reasonable accommodation.
Q. My doctor placed me on a leave of absence because my
employer would not allow me to work remotely. My employer has now moved
everyone to remote work. Can I begin working again?
A. Yes. If your employer decides to
implement remote work protocols, your employer must reinstate you as soon as reasonable
accommodations are available that will permit you to perform the essential
functions of your job.
Q. If I require a leave of absence for my pregnancy, does
my employer have to pay me?
A. Under ordinary circumstances, if
you are taking leave because you are disabled because of pregnancy or to bond
with your new baby, your employer does not need to pay you while you are on
leave. However, you can use any sick and vacation leave you have accrued.
Additionally, you may be eligible for State Disability Insurance (SDI) and Paid
Family Leave (PFL) during this time, which would provide you with 60 or 70% of
your normal weekly wages. If you are
taking leave under the Pregnancy Disability Leave Law, the New Parent Leave
Act, or the California Family Right Act, then your employer must also maintain
your health benefits.
If you work for an employer with
500 or fewer employees and your health care provider advises you to self-quarantine
during your pregnancy due to concerns about COVID-19 or you are experiencing
symptoms of COVID-19 and are seeking a medical diagnosis, then your employer
may be required to pay you for 10 days for emergency sick leave under The
Families First Coronavirus Response Act.
Q. Can I be laid off while I’m taking disability or
parental leave?
A. Your employer cannot include you
in a layoff if the reason for the layoff is that you are pregnant or taking a
job-protected leave. However, your employer can include you in a layoff or
reduction in force if you would have been laid off even if you weren’t pregnant
or taking leave.
Q. What benefits can I receive if I’m on leave or laid
off?
A. A variety of benefits may
provide partial wage reimbursement if you are laid off during your pregnancy or
taking a job-protected leave of absence. You can apply for these benefits
through California’s Employment
Development Department (EDD). Such partial wage replacement benefits may
include:
Short term disability—during the time you are
disabled because of pregnancy, childbirth, or a related medical condition, you
may be entitled to short term disability benefits.
Paid family leave—if/when you are no longer disabled,
you may be eligible for up to 6 weeks of Paid Family Leave benefits while you bond
with your new baby (8 weeks starting July 1, 2020).
Unemployment Insurance—when you are available to work
but do not have a job to return to, you may be eligible for unemployment
benefits.
Q. My child’s school/daycare closed due to COVID-19. Can
I work from home?
A. There is no law that requires
employers to permit employees to work from home because a child’s school or
daycare has closed. However, the California Labor Code and the The
Families First Coronavirus Response Act require your employer to provide
you with time off of work.
California’s
Family School Partnership Act requires employers with at least 25 employees
to provide you with up to 40 hours of leave for a school or childcare related
emergency. A school related emergency includes the closure or unexpected
unavailability of your child’s school or childcare provider. Unfortunately,
this provision does not apply if your child’s school or daycare remains open
even if you would prefer to keep them home due to concerns of the new coronavirus.
The
Families First Coronavirus Response Act requires employers with 500 or
fewer employees to provide employees with 2 weeks of emergency paid sick leave
and 12 weeks of emergency family leave when workers need to care for their child
under 18 years old if the child’s school or place of care has been closed or when
their childcare provider is unavailable. For the 12 weeks of emergency family leave,
you must have worked for your employer for at least 30 days.
Q. What is a good approach for discussing
my rights with my employer?
A. Be professional and patient without risking your health
or the health of your pregnancy or child. It is important to ask your employer questions
in a professional manner. If your employer doesn’t have immediate answers, give
them the opportunity to obtain accurate information. But never risk your own
health or the health of your pregnancy or child. If your doctor or other health
care provider advises that you require accommodations or a leave of absence
immediately, let your employer know in writing and follow your health care
provider’s advice. If your employer requests a doctor’s note, provide one to
them as soon as it’s feasible.
Benefits and protections available to employees impacted by COVID-19 are evolving and you are encouraged to check with the websites of the Labor and Workforce Development Agency and the Employment Development Department of Californiawebsites for the most updated information regarding your rights as an employee in California and the benefits that may be available to you. Also, visit Legal Aid at Work’s Roadmap and Guide to see how your right to leave and wage replacement work together. You may also contact Sarah Schlehr at sarah@pregnancylawyer.com if you have questions about your rights.
Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.
Charles Anderson, a new father who was denied parental leave by his employer, and his baby girl.
By Jenna Gerry
With unprecedented bi-partisan support, a bill that would expand parental leave to 2.7 million more of California’s working families is on Gov. Jerry Brown’s desk. Introduced by Sen. Hannah-Beth Jackson (D-Santa Barbara), SB 654, the New Parent Leave Act, would extend six weeks of job-protected bonding leave to California workers at companies with at least 20 employees within 75 miles of the employee’s worksite.
This bill addresses one of the biggest barriers workers face when trying to take Paid Family Leave — knowing that their job may not be there when they get back. This bill is remarkable not only for what it will provide to millions of California workers but for the justified bi-partisan support it received on the Assembly floor.
Here in California, the state Chamber of Commerce has consistently put every bill expanding the right to take job-protected parental leave on its infamous “Job Killer” list. In the past, a bill’s placement there has ensured that no Republican legislator would support it, and it has often meant that few to no moderate Democrats would either. Indeed, it can be the kiss of death for progressive legislation, even in our Democratic-controlled Legislature. So, as SB 654, prominent on the “Job Killer” list, headed to the Assembly floor in August, Jackson and the bill’s sponsors were not sure if we had the 41 votes we needed. But something miraculous happened.
After hearing her fellow Republicans voice staunch opposition, Assemblymember Melissa Melendez (R-Murrieta) stood up to speak in support of SB 654. She described her own experience of deciding to leave the military when she became a mother — in part because she would have received only six weeks off after giving birth. She could not imagine having to leave her child that fast. Melendez called on her colleagues to consider that we guarantee the job of any member of the military reserves if they are called to active duty. And she asked whether “the birth of a child is less important than service to one’s country.” She also challenged past rhetoric from both sides of the aisle justifying votes against parental leave measures.
When the final vote came down, nine Republicans joined 45 Democrats in favor of SB 654. We hope this was a turning point, and our state and nation can now transcend partisan politics to understand, finally, that family leave affects us all. As Melendez put it, “Republicans and Democrats agree that family is important, that children are important. And, if you believe that, you have to put your money where your mouth is.”
California’s health community is also speaking out for SB 654. More than 120 California health care professionals and 16 health care organizations — including the American Academy of Pediatrics’ California chapter — delivered a letter to Governor Brown this week urging him to sign it. “This is about clear empirical evidence,” said one signatory, Dr. Paul Chung of UCLA, “showing that the health and well-being of parents and their children — the present and future of our state’s economic productivity — are improved by job-protected paid parental leave.”
In addition to my organization, Legal Aid Society-Employment Law Center, several groups that advocate for policies to support the viability of working families cosponsored and helped promote SB654: the California Employment Lawyers Association, Equal Rights Advocates, and the California Work and Family Coalition (which counts these groups and many more among its members).
Now it is time for Governor Brown to make parental leave a reality for millions more California workers, especially because they’re already funding six weeks of it through payroll deductions. But parental leave is about more than the bottom line; it is about ensuring the wellbeing of California families and the state as a whole.
Jenna Gerry is an attorney at Legal Aid Society – Employment Law Center (LAS-ELC), where she advises workers struggling with family and medical crises and participates in legislative advocacy to expand family-friendly workplace policies. LAS-ELC is a co-sponsor of SB 654, along with the California Employment Lawyers Association, the Work and Family Coalition, and Equal Rights Advocates.
This Mother’s Day, let’s give moms the gift of job-security for the time they take away from work to bond with their new babies. Just last month, Governor Brown signed into law a bill that would boost Paid Family Leave benefits for parents who take baby bonding leave, but nearly half of all California workers could still be fired for taking the leave and accessing those benefits. Under current law, job-protection for baby bonding leave is only available to parents who work for large companies with 50 or more employees, leaving out over forty percent of the workforce in California.
A legislative proposal currently underway in California, Senate Bill 1166, by Senator Hannah-Beth Jackson, would help ensure more mothers can go back to their jobs after taking up to 12 weeks of baby bonding leave, by extending job-protection to parents who work for smaller companies. The reality is, almost half of the workforce is now women and mothers and fathers are sharing in financial and childcare responsibilities. Without job-protection for new parents, mothers are usually the ones who are forced out of the job market when they would otherwise choose to return after an extended period of leave.
Many other states have already expanded their family leave laws to provide more parents with job-protection when out on leave. Most recently, New York signed a bill that provided paid family leave benefits with job protection for nearly all workers in the state, regardless of the size of their employer. In Washington DC, all employees have 16 weeks of job-protected leave. In Maine, workers at companies with 15 or more employees have 10 weeks of job-protected leave; Massachusetts provides 8 weeks of job-protected leave for workers at companies with 6 or more employees; Minnesota offers 6 weeks of job-protected leave for workers at companies with 21 or employees; and Oregon provides 12 weeks of job-protected leave for workers at companies with 25 or more employees.
Opponents of SB 1166 argue that the proposed measure would “kill jobs” and “unduly burdens and increases costs of small employers.” These fear-based, sky-will-fall arguments have no basis. In 2004, the National Federation of Independent Business conducted a poll of small businesses that contradicts the “undue burden” narrative. The average number of requests for leave is only one per year. Two-thirds of the small businesses did not receive a request for leave at all in the prior three years. When asked about the principal problem caused by the employee’s absence, the most frequent response was “no real problems.” A 2012 national survey of employers conducted by the Department of Labor also found that small employers were less likely to report problems with family leave than were large employers and that fewer than 10 percent of employers reported problems with productivity, absenteeism, turnover, profitability, career advancement, or morale because of family leave.
At last month’s bill signing ceremony raising California’s minimum wage, President pro Tem Kevin de León said, “When it comes to taking care of working families, mark my words, California leads the nation…the rest of the country looks toward California for leadership on this issue.” It’s time for California to make good on its promise to working families – to provide not just higher paid leave benefits, but an assurance that their job will be there when they need it the most.
In addition to signing your Mother’s Day cards today, please sign this petition in support of SB 1166, because no mother in this state should have to choose between caring for a child and keeping a job.
At first glance, a cultural shift appears to be occurring in the country when it comes to parental leave. In the past year, companies like Facebook, Microsoft, Accenture and Netflix have instituted generous paid parental leave policies that give parents the ability to take time off from work to bond with a new child. However, while paid parental leave may be becoming more accessible to high-wage earning professionals, it remains impossibly out of reach for many workers who risk losing their job if they take any time off after having a new child. It’s worth noting that Netflix’s parental leave policy glaringly excluded low-wage workers from its benefits.
Last week, Senator Hannah-Beth Jackson (D-Santa Barbara) unveiled a new legislative proposal that would dramatically improve access to parental leave for all California workers by addressing one of its biggest barriers — job protection.
The reality is the patchwork of existing protections for workers who need to take parental leave are woefully inadequate. The California Family Rights Act and the federal Family and Medical Leave Act provide 12 weeks of unpaid leave and job protection, but these laws only cover employees who work for larger companies with 50 or more employees. This leaves over 40% of California’s workforce ineligible for job-protected leave because their employer is too small.
Because nearly half of the workforce is not covered by our family leave laws, employers can punish workers for taking time off to care for a new child. As a workers’ rights advocate, I often hear stories of employees – particularly low-wage earners – whose careers are slow-tracked, whose hours are restricted, or who are simply fired for taking or even requesting family leave.
Even more troubling is that workers without job protection are unable to take advantage of the state’s Paid Family Leave (PFL) program, which provides partial wage replacement benefits for those who take family leave. Studies have shown that low-wage workers who qualify for these benefits often cannot use them even though they pay into the program. A 2011 Center for Economic and Policy Research study of the PFL program showed that the ability to use parental leave is far greater for salaried employees (mainly managers and professionals) and high earners (those earning over $20 per hour plus employer health insurance) than for those in hourly and low-quality jobs.
In the same study, 37% of respondents expressed concern that if they took PFL, their employer would be unhappy, their opportunities for advancement would be affected, or they might simply be fired. At a time when financial security and healthcare coverage are so important, the risk of losing one’s job to take leave to care for a new child is simply a risk that many new parents cannot afford to take.
Senator Jackson’s bill would alleviate that risk by extending parental leave rights for new parents (including domestic partners and adoptive or foster parents) who work for employers with 5 or more employees.
The need for expanded and equitable access to parental leave in the state cannot be understated. The benefits of parental leave on the health and welfare of the economy and our state’s working families have been well-documented. Research shows that paid family leave, particularly when there is job protection, increased new mothers’ wage growth and future employment rates. Fathers who take parental leave are more engaged with their newborns, promoting greater gender equity at home and at work. In addition, evidence strongly suggests that children enjoy many short- and long-term benefits from parental leave including better health and higher high school graduation rates.
While it is encouraging that good corporate policy is pushing the conversation on parental leave forward, it’s time for the Legislature to act. The protections of Senator Jackson’s bill will help ensure the physical, psychological, and economic health of all of California’s working families, and not just Silicon Valley executives.
Menaka Fernando is an associate attorney at Outten & Golden LLP, where she represents individual employees in litigation and negotiation, and a member of the California Employment Lawyers Association.
This Father’s Day, let’s do more than just celebrate our dads with Hallmark cards and backyard barbecues. Instead, let’s give our dads something they really need – flexible workplace policies.
It can’t be surprising that the increase of women in the workforce, coupled with laws that discourage fathers from taking leave, has created a cascade of domestic stresses. While women still bear a disproportionate share of the domestic work despite also working outside the home, working fathers now report feeling more work-family conflict than working mothers do. The irony of this conflict is that fathers are actually prevented from sharing some of the burdens (and joys) of family life because they are saddled by Leave It To Beaver-era parental leave laws.
The good news is, change appears to be on the horizon. This April, Massachusetts became the first state to require all but the smallest employers to provide fathers with unpaid job-protected leave for the birth of a child. The law, renamed from the Maternity Leave Act to the Parental Leave Act, requires businesses with at least six employees to cover dads as well as moms. The expanded coverage is a much-needed first step in recognizing the universal need for fathers to spend time and bond with their newborn children.
A 2007 study found that fathers who took two or more weeks of leave after a child was born were more likely to perform certain daily child care tasks, like diapering, feeding, and bathing later on. Fathers who took less than two weeks of leave were no more involved than those who took no leave at all.
Despite the clear benefit of taking time off to bond with a new child, fewer and fewer businesses are offering leave benefits to fathers and research has shown that those who do take leave face a significant stigma in the workplace (let’s not forget the New York Mets baseball player, Daniel Murphy, who was criticized when he took three days off for the birth of his child).
According to a recent study, most fathers only take between one and two weeks off after the birth of a child and the length of time off was closely tied to how much of the leave was paid. Luckily, California is one of the few states that offer paid leave to parents. And it’s no surprise that since the program was implemented, the percentage of “bonding leaves” claimed by men has gone up from 18.7 percent in 2005 and 2006 to 31.3 percent in 2012 and 2013.
Unfortunately, many fathers, especially low-income fathers, cannot take advantage of paid leave because their employers are too small to be covered by a law that would provide the new dads with job protection. Most fathers simply cannot risk losing their job, especially after the birth of a new child. Leaving aside the lucky Massachusetts dads, the only fathers who can access job-protected leave are those who are covered by the Federal Family and Medical Leave Act (FMLA) or a state law corollary. But these laws leave a lot of fathers out in the cold since they only cover employees who work for companies with 50 or more employees and who have worked there for at least a year.
Incremental change may be on the way in California, where advocates for working dads (and moms) are pushing to increase the boundaries of who is covered by the California Family Rights Act, California’s corollary to the FMLA. California’s SB 406, the legislation that would amend the law, does not go as far as the Massachusetts parental leave law. But it does propose to expand leave rights to workers at smaller businesses, by lowering the employee threshold from 50 or more employees to 25 or more.
While SB 406 and the Massachusetts law are certainly steps in the right direction, both still lag far behind what other countries provide for their fathers. For years, Sweden has had a generous parental leave policy of 16 months that could be shared by the mother and father. Beginning in 1995, Sweden introduced a “use it or lose it” policy that reserved one month specifically for dads. This was increased to two months in 2002 and will increase again to 3 months in 2016. Some countries, like Chile, Portugal, and Italy, go so far as to make paternity leave compulsory, to help ensure that fathers share childcare responsibility with mothers.
It’s time for California and the rest of the United States to catch up and show that the job of parent is at least as important as the jobs parents perform for their employers.
Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.
What do the United States and Papua New Guinea have in common? According to the United Nations, they are the only countries in the world without any sort of paid time off for new mothers.
In the Mother’s Day edition of his HBO show “Last Week Tonight,” John Oliver, the British comedian who is perpetually incredulous over most things American, juxtaposed the maudlin, corporate exploitation of the holiday with the grim economic realities facing working mothers in this country. But Oliver noted a tiny bright spot. Three states, California, Rhode Island and New Jersey, have some sort of limited paid leave for new mothers.
California’s paid family leave program is modest. Payments are only partial and a worker can be fired for taking paid family leave unless they are also eligible for job protection under the California Family Rights Act (“CFRA”). Yet, only workers at companies with 50 or more employees and who have been on the job for at least a year are covered under CFRA. Accordingly, only about half of California employees can actually take advantage of the paid family leave program.
That may be about to change. Senate Bill 406, currently pending before the California Legislature, would expand the job-protection coverage of the paid family leave program to include smaller companies of 25 or more employees. It would also expand the definition of family member for whom a worker can take job-protected leave to care for to reflect the realities of modern families, by including grandparents, grandchildren, siblings, and adult children.
Even this modest expansion of the paid leave program has drawn the garment-rending wailing of the Chamber of Commerce, who predictably labeled it a “job killer.” In the Mother’s Day clip, Oliver mocked the overwrought rhetoric and overblown fears of Congressional opponents of the unpaid Family Medical Leave Act (“FMLA”) in 1992: “Our businesses shall crumble, or cities shall burn and hungry wolves will roam the streets.”
In reality, a 2012 Department of Labor survey showed only 15% of employers reporting any significant difficulty in complying with the FMLA. There were no reports of hungry wolves. A similar study conducted ten years after the enactment of California’s Paid Family Leave Act found that 90% of California employers considered the Act to have a positive or neutral effect on productivity, profit, morale and costs.
Progress in protecting the economic security of families seems to happen only incrementally. The expansion of California’s paid leave program reflected in SB 406 is a great next step. Let’s leave Papua New Guinea in the dust!
Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation, a non-profit professional association honoring lawyers whose careers have demonstrated dedication to the welfare of the community and the traditions of the profession. Prior to opening the Law Office of Curt Surls in July 2012, he was a partner with Bornn & Surls for over 15 years. Mr. Surls was also an attorney with the Oakland civil rights firm then known as Saperstein, Seligman & Mayeda, specializing in employment and civil rights class actions. Mr. Surls also worked for the Department of Industrial Relations and the Legal Aid Foundation of Los Angeles.
This week, California’s “Paid Sick Days” bill cleared another hurdle in the Senate Labor Committee where it passed on a party line vote. AB 1522, by Assemblymember Gonzalez, would provide all California workers with at least three days of paid sick leave per year. The bill would also allow an employee to use leave if necessary due to domestic violence, sexual assault, or stalking.
While a provision of some sick leave is an important improvement upon California law, three days per year is simply not enough. And the recent deletion of the private right of action, which would allow workers to enforce their rights in court, removes an important mechanism to make sure that workers actually are able to access their right to paid sick days. California needs to adopt a more robust paid sick leave law. Doing so is critical for public health, for workers and their families, and for California’s economy.
Many workers, especially low-wage workers, do not receive any paid time off from work for their illness. This forces them to work while sick – serving food in restaurants, providing child and elder care, and ringing up purchases as cashiers. This is bad enough for the workers themselves, but the consequences infect the economy and public health as well.
The burden to work while sick is not something that we all bear equally. Latino workers, for example, are significantly less likely to have paid sick days – only 47 percent of Latinos receive some form of paid time off, compared with 61 percent of the overall workforce. Unsurprisingly, the poorest workers also have the least access to paid sick leave. Thus, workers who can least afford to use unpaid days and who cannot afford to lose their jobs are also those least likely to have paid sick days at their disposal. Of workers paid $65,000 or more per year, more than 80% have paid sick days; by contrast, only about a quarter of workers making less than $20,000 per year reap this important benefit.
Recognizing this disproportionate burden, several forward-thinking cities have made progress towards eliminating this difficult ultimatum by adopting paid sick leave laws. The table below shows those jurisdictions, including the size of employer covered by the paid sick days law, the maximum amount of leave provided, and whether the leave is paid or unpaid. Although eligibility and the extent of benefits vary greatly, all of these jurisdictions see healthy families and healthy economies as intimately linked, not mutually exclusive.
Although cities have pioneered this protection, some states recognize that the cost or trappings of urban living serve as barriers for many workers and families. The state of Connecticut became the first state to adopt paid sick days in July 2011. Connecticut’s leave can be used for the worker’s own health, for the care of a child or a spouse, or for needs related to domestic violence or sexual assault. A recent report about this law found that offering paid sick days did not harm business. In fact, many businesses reported positive effects, including reduced employee turnover, reduced spread of illness, improved morale, and increased productivity, motivation, and loyalty. Eighteen months after the law took effect, more than 75% of employers were either “very supportive” or “somewhat supportive” of the new law.
Unfortunately in other states, the legislative trend has moved in the opposite direction. Ten states— Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, North Carolina, Tennessee, and Wisconsin — have enacted legislation to block cities from adopting paid sick leave, and fourteen other state legislatures have seen the introduction of such legislation. In addition, Milwaukee, Wisconsin’s paid sick days bill was invalidated by a state law banning such ordinances.
Enactment of a federal law allowing workers to protect their health without sacrificing their financial or occupational wellbeing would override state laws hostile to the rights of workers. Pending national legislation—the Healthy Families Act—would provide paid sick days as well as paid safe days for victims of domestic violence, sexual assault, and stalking. But, for the time being, “[t]he United States is the only country out of the 15 most competitive that doesn’t guarantee paid sick days to all workers, leaving 40 percent in the private sector without access to the leave.”
This coverage gap is not only embarrassing, it also is bad for workers and their families and undermines public health. By allowing workers to address their pressing health needs without sacrificing wages, paid sick leave would preempt the degeneration of illnesses into emergency situations. Without offering paid sick leave, workers must gamble with their health, and may suffer wage and job losses. In addition to these economic concerns, workers’ hardships often need to be offset by significant public assistance expenditures. Nor does the employer benefit by withholding paid sick leave from its employees: loss of productivity due to illness is twice as expensive to employers as absenteeism. These conclusions follow not only from common sense, but from the benefits reaped by workers and businesses across the state of Connecticut.
The rhetoric surrounding this debate is feverish, but the health of our economy and the health of our workers need not be at odds. Paid sick leave is the antidote to many social ills – from economic inefficiency to reliance upon public assistance. All stakeholders should endorse paid sick leave in order to promote a healthier economy, for employers and employees alike.
Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work. Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid. Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco. In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow. She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.
International Women’s Day, celebrated worldwide this past weekend, started out as “International Working Women’s Day” in 1911. One week later, the notorious Triangle Shirtwaist Factory Fire of 1911 broke out, killing over 140 workers – mostly women – who were trapped inside the factory. The horror of that fire and the working conditions imposed on the women locked inside the factory galvanized the labor movement and the women’s rights movement. Even though the name may have changed, this annual day honoring women is the perfect time to take account of the barriers working women still face today.
Working women in the United States confront challenges ranging from workplace discrimination and harassment to unequal pay and inadequate leaves of absences. The 2014 Shriver Report: A Woman’s Nation Pushes Back from the Brink collects essays that detail how these barriers impact not only working women, but their families, the economy and society as a whole.
Discrimination and harassment – Women continue to face unlawful discrimination and harassment on the job based on sex, pregnancy, gender identity, sexual orientation, race, national origin, disability, and many other characteristics. The U.S. Equal Employment Opportunity Commission, the agency that enforces our federal civil rights laws published its statistics for charges filed in Fiscal Year 2013. Charges of sex discrimination constituted approximately 30% of the charges filed with the EEOC. The California Department of Fair Employment and Housing, the state agency that enforces our state civil rights laws published its statistics for 2012. This data showed that sexual harassment charges were approximately 60% of the charges filed regarding sex discrimination and harassment. These statistics demonstrate that employment discrimination and harassment continue as serious problems for working women.
On the legislative front of women’s rights issues at the federal level, the Pregnant Workers Fairness Act would strengthen the protections for working pregnant women. We also need the protections of the Employment Non-Discrimination Act, which would prohibit discrimination on the basis of sexual orientation and gender identity across the country. But these laws must also be enforced, which means vigilant leadership and restoration of the funding cuts that have undermined the California and federal agencies charged with civil rights enforcement.
Gender-Based Wage Gap – Despite the fact that gender-based pay discrimination has been against the law for over 50 years, women in the United States still face a significant wage gap. Recently, there has been little progress in closing the gap in wages between women and men. As of 2012, women’s median earnings were 81% of men’s. And the wage gap is worse for women of color. Because women are breadwinners for their families, the impact of wage discrimination is felt across the board. The Paycheck Fairness Act, pending in Congress, would help fight gender-based pay discrimination
Leaves of Absence – Women are still the primary caregivers in the U.S. and they also often must take time off work for pregnancy and childbirth. Yet the U.S. lags behind nearly every other country in the industrialized world in terms of how much leave it provides for caregiving, pregnancy and childbirth. The federal Family and Medical Leave Act provides for job-protected leaves of absence for caregiving as well as for pregnancy and bonding leave. However, the FMLA is unpaid leave and many workers cannot afford to take unpaid leave. The FMLA also provides no protection for those workers at companies with fewer than 50 employees at or near their worksite, those who have worked for the employer for less than a year, and many who work part-time. Additionally FMLA takes a narrow view of what it means to be a family member, drawing a tight boundary around the nuclear family– parent, child, and spouse. Grandparents, siblings and other extended family are not included.
The California Paid Family Leave Law, the first of its kind in the country, provides partial wage replacement to workers who take time off to care for family members or bond with a new child. As of July 2014, California workers will be able to take paid family leave for a broader group of family members that will include grandparents and grandchildren, siblings, and parents-in-law.
Some federal legislators are already taking the cue from California with a pending bill in Congress to provide paid leave nationally. They should keep up the momentum and improve the FMLA to extend coverage to more workers and to widen the circle of who is considered “family.”
The United Nations’ theme for this year’s International Women’s Day is “Equality for Women is Progress for All.” The global gender gap index shows a strong correlation between a country’s gender gap and its economic competitiveness. Given the fact that women are at least half of the potential workforce, a nation’s economic competitiveness depends on how it treats women. Improving the lives of working women will enhance progress for all working families and our national economy. When that happens, we will all be able to proclaim “Happy International Women’s Day”!
Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work. Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid. Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco. In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow. She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.
Unlike other industrialized nations, the United States does not have a national paid sick leave policy. According to a 2011 study by the Economic Policy Institute, 40% million Americans working in the private sector are employed in jobs that do not provide paid sick time. And, the real cost of having employees go to work when they are sick is enormous. The Centers for Disease Prevention and Control estimates that the annual flu season, alone, costs companies $10.5 billion in lost productivity and direct medical costs. But, momentum seems to be building in favor of passing legislation that will provide paid sick leave to all employees.
In 2007, San Francisco became the first city in the country to require that all private companies – big and small – offer paid sick days to their employees. At the time, business groups warned that providing paid sick leave would negatively impact local business. As it turns out, these dire predictions were entirely wrong. According to a 2011 study by the Institute for Women’s Policy Research, paid sick leave has benefitted employees without reducing employer profitability.
While it took a few years for other municipalities to follow San Francisco’s leave, by November 2013, six cities and one state had paid sick leave laws: Connecticut, San Francisco, Washington, D.C., New York City, Jersey City (New Jersey) and Portland (Oregon). Then, last summer, Senator Tom Harkin and Representation Rosa DeLauro introduced the “Healthy Families Act,” which would allow workers to accrue up to seven days of paid sick leave over the course of the year. While the Act has not yet passed, each month, more states and municipalities seem to be jumping on the band wagon. Earlier this month, the Newark City Council passed a paid sick leave ordinance, and similar legislation is under consideration in California and Washington.
The national discussion regarding paid sick leave is not limited to legislative bodies. Earlier this month, Michael Miller of the Atlantic City Press, published an article regarding the move within New Jersey to provide paid sick leave. And, on Monday, the New York Times published a story by Rachel Swarns which explained that cities that have adopted paid sick leave ordinances have not experienced an exodus of businesses.
But the biggest push towards providing paid sick leave to all Americans came just this week. On Monday, during his State of the Union Address, President Obama said that “[a] mother deserves a day off to care for a sick child or sick parent without running into hardship – and you know what, a father does, too.” This remark was widely considered to be support for national legislation requiring that private employers provide paid sick leave. Then, two days later, actress Cynthia Nixon joined House minority leader Nancy Pelosi and a coalition of progressive groups in a “telephone town hall” in which they pushed for the passage of new legislation of paid sick leave.
Given that 74% of Americans believe that employers should be required to offer paid sick leave, it is high time that we pass legislation that guarantees all Americans access to paid sick leave.
Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.
