The federal government’s emergency coronavirus relief law includes paid sick leave benefits for American employees at small to midsize firms who have to take time off because of the spreading virus.
But the law signed by President Trump last week includes exceptions that some analysts said could exclude nearly 20 million private sector workers, including an exemption for small businesses that’s causing confusion as to how it will be implemented.
Congressional Democrats have introduced additional legislation to close those gaps and make paid sick leave available to all U.S. workers.
California already has a law providing full- and part-time workers at least three days of paid sick leave each year. Workers in Los Angeles are eligible for twice that: at least six paid sick days annually.
The new federal law — which marks the first time that paid sick leave has been mandated nationwide — would expand that for eligible workers, and it came in response to the sudden, dramatic slowdown in U.S. economic activity caused by the coronavirus pandemic.
Businesses big and small are shutting down or cutting their operating hours, and a surging number of employees are being furloughed or laid off. That has led to skyrocketing claims for unemployment benefits, and many of those still employed are getting fewer hours of work.
Under the new law, qualified employees include those who have COVID-19, the disease caused by the virus; who are in quarantine; who are caring for a family member affected by the virus — that is, a relative who has COVID-19, is subject to a government quarantine or has been advised by a doctor to self-quarantine; or who are caring for children whose schools or day care centers have closed. Firms paying the sick leave would be reimbursed with federal tax credits.
Full-time workers would get up to two weeks of paid leave, and part-time workers would get a period of leave equal to the number of hours they work on average over a two-week period.
The payments would be capped at $511 a day for those who are sick with the virus or seeking care, and $200 a day for those caring for a sick family member or children.
The law says the benefit is not contingent on the employee finding a replacement worker, and businesses must post the law’s requirements “in conspicuous places” where their employees work.
However, the new law excludes companies that employ more than 500 people, many of which have their own sick leave plans. It also gives the Department of Labor the authority to exempt firms that employ healthcare workers and emergency responders if those companies want to opt out of paying sick leave.
The bill also gives the Labor Department the authority to let small businesses with fewer than 50 workers opt out if the sick leave payments “would jeopardize the viability of the business as a going concern” — in other words, if the company fears that paying the benefit would help drive it out of business.
That exemption “is a huge loophole” in the new law, said Elise Gould, senior economist at the Economic Policy Institute, a labor think tank. “There’s no reason why it should be so onerous for a small business to take this up, because they’re going to get that back in tax credits.”
She said that federal data show 27% of U.S. private sector workers are employed at firms with 50 or fewer workers, and that 36% of those employees don’t have access to paid sick leave.
The result is that 12.8 million workers at small businesses are in jeopardy of not getting paid sick leave even with the new law, Gould said. An additional 6 million to 7 million workers employed at firms with more than 500 workers also would be ineligible, she said.
What’s confusing is whether small firms that want an exemption must obtain one from the Labor Department before they refuse to pay sick leave to workers, or they can immediately decline to pay sick leave while waiting for such an exemption, said David Barron, a labor attorney with the law firm Cozen O’Connor.
“Typically, a law is passed and the enforcement agency would have the ability to clarify and explain that law in the form of regulation,” Barron said. “But this situation is moving so quickly, I don’t know how fast the Department of Labor would be able to provide that sort of guidance.”
Barron likewise noted that those small firms that do pay for sick leave “will get a dollar-for-dollar credit on their taxes” under the law, and that the Labor Department has until April 2, when the law takes effect, to issue guidance.
“The Department of Labor could establish some mechanism for small employers to apply for waivers and have that hashed out before this thing takes effect,” he said.
Another labor lawyer, Shannon Liss-Riordan, said that “in the meantime, I believe the employer would be responsible for paying sick leave under the act.”
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Three Democratic members of Congress — Sen. Patty Murray of Washington, Sen. Kirsten Gillibrand of New York and Rep. Rosa De Lauro of Connecticut — have introduced a bill, called the PAID Leave Act, that would provide “all employees and independent contractors” with 14 emergency paid sick days, to be “reimbursed in full by the federal government.”
DeLauro said in a statement that she was “disappointed” the law Trump signed “left out tens of millions of workers from access to meaningful paid sick days or longer-term paid leave, including our frontline healthcare workers and first responders.”
The new bill is needed “so no one falls through the cracks,” she said.
Sen. Edward J. Markey (D-Mass.) also called on Congress to ensure that the next relief package include paid leave provisions that “specifically apply to gig workers,” or on-demand workers such as Uber and Lyft drivers.
“They are the reason that so many gig companies have become household names and are able to successfully provide important services to millions of American customers,” Markey said in a letter to Senate Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Charles E. Schumer (D-N.Y.).
“The failure of their employers to properly categorize them as employees means that gig economy workers are essentially left on their own during this crisis,” Markey wrote.
Other politicians, including Sen. Mark Warner (D-Va.), and gig advocacy groups have urged Congress to alleviate some of the financial burden on gig workers if they become ill with COVID-19 or choose to limit their exposure by staying home.
Liss-Riordan has taken the issue to court. She’s filed federal lawsuits in San Francisco seeking emergency motions requiring Uber and Lyft to classify their drivers as employees so they can at least be covered under the California law.
“Uber’s failure to provide paid sick leave as mandated by state law means Uber drivers will need to work while sick to make ends meet and substantially increases the likelihood Uber drivers will spread illnesses to the general public,” the suit against that company states.
Uber and Lyft declined to comment on the litigation, but reiterated their past comments that they would provide funds to drivers diagnosed with the virus or placed under quarantine. Uber said its drivers would receive unspecified financial assistance for up to 14 days, and Lyft also said it would provide unspecified financial support to its drivers.