By: Chad A. Staul, Esq.
Does anyone get the impression that Congress has been in an "employee rights granting" kind of mood in recent years? In addition to recent amendments to the FMLA and proposing paid sick leave under the hotly debated Healthy Families Act (discussed in our August 2009 Newsletter), Congress is now pushing another emergency bill, H.R. 3991, in the wake of the H1N1 flu outbreak. The legislation is aptly named the "Emergency Influenza Act" (EIA). (Perhaps it is no surprise that a co-author of this bill, Rep. George Miller (D-CA), is also an author on another contentious piece of legislation, the Employee Free Choice Act).
Among other provisions, the EIA would require employers with more than 15 workers to provide up to five days of paid sick leave if an employer "directs" or "advises" an employee "to leave work or not to come in to work because the employer believes the employee has symptoms of a contagious illness, or has been in close contact with an individual who has symptoms of a contagious illness." The EIA covers full-time and part-time workers and prevents employers from taking adverse employment actions against an employee for following the employer's direction to stay home due to a contagious illness. It is important to note that an employer who currently has a policy allowing paid sick leave in such instances would be exempt.
The EIA does, however, contain a provision that is favorable to employers, but could be the subject of litigation if the bill is signed into law. It allows an employer to "call the shots" by giving them the authority to end the paid sick leave at any time by letting the employee know that the employer believes the employee is well enough to return to work. Although the decision of when employees should return to work remains with the employer, this authority may be made moot by the fact those employees could continue on unpaid leave under the FMLA or other existing sick leave policies.
The bill is currently in the House Education and Labor Committee. If enacted, the EIA has the potential to place further financial burdens on small business and employers trying to remain profitable during the current economic downturn. It may open the door for abuse from employees who might be prone to calling in sick even when they are not and prevent employers from using good old fashioned ingenuity in designing mutually beneficial policies for the employer and employee. Further, given the breadth of the EIA's proposed language, litigation is almost certain if this bill is passed into law, thereby creating even more costs for employers.
Employers are advised to become familiar with this piece of legislation and monitor its progress in Washington. The attention given in the media to the H1N1 flu outbreak and Congress' current agenda of targeting employers makes it more likely than not that this bill will make its way to the President's desk and will be signed into law. Perhaps the one saving grace is that the current version includes a "sunset provision" stating that after two years the EIA would no longer be effective.
Questions? Please contact WS Attorney Chad A. Staul in our Minneapolis, MN office at (952) 746-1700, or chstaul@wesselssherman.com.
