Mandatory Paid Sick Leave Bill Is A Thorny Issue

August 18, 2008

Anna M. Dailey


*As seen in the August 15th issue of The State Journal.

To borrow from Shakespeare: A thorn by any other name still pricks. I am sure whoever thought up the name for the mandatory paid sick leave law a.k.a. the West Virginia Healthy Families Act, intended to give the bill a name that would be hard to oppose. After all, who wants to oppose healthy West Virginia families? No matter the name, the bill is still no rose. In fact, it is full of thorns, even for employers who already provide paid sick leave.

The sponsors of the Healthy Families Act website claim working West Virginians have to choose between staying home with the flu or going to work sick; caring for an ailing parent or keeping their job; and taking care of a sick child or getting their paycheck. However, most West Virginians do not face these Hobson choices. In part, because federal laws already exist which protect one's job during such family crisis situations.

The Family Medical Leave Act (FMLA), the law in all 50 states, creates a level playing field for businesses. Employees working for private employers with more than 50 employees can already take FMLA time to care for sick children, ailing parents or to recuperate from the flu. FMLA provides up to 12 weeks of unpaid leave annually to all employees, including those working only 1,250 hours a year. Additionally, many employers provide some amount of paid sick leave to their full-time employees. Others provide "paid time off" which lets employees take paid leave when they need it, regardless of the reason for the leave. In today's tight job market, employers who can afford to provide paid sick and paid vacation time do so already.

So why would employers, especially those already providing paid sick leave or PTO oppose this bill? The answer lies in the details and the legislation's many added costs to all employers. H.B. 4447, the WV Healthy Families Act (WVHFA), applies to employers of 15 employees. It requires seven paid sick days and a pro-rata amount for part timers. Employees can take up to three days off before needing medical certification, which is different than FMLA. It is also different than many company policies and collective bargaining agreements. This paid sick leave could also be taken in increments of an hour or less, with no mechanism to prevent abuse. Employers will be required to keep three years of records and leave must be carried over into the next year. Lastly, the legislation provides for a new cause of action for discrimination lawsuits against employers.

Then there are the issues of what is not in the bill. It makes no mention of what happens when the employer uses a 4 on - 4 off, 12 hour shift, which gives employees almost 14 days off a month to handle health care issues. Nor does it address how the employer must calculate sick day pay when shift times are different than eight hours. Finally, it makes no allowances for collectively bargained contracts with attendance control and leave policies different than what the legislation requires.

Passage of this mandatory paid sick leave bill threatens to place West Virginia in a unique position. Three states, California, New Jersey and District of Columbia, have paid sick day laws. But all three are funded by taxes on employees' wages and are administered through state temporary disability insurance programs. The burden of paid sick leave in these states is one borne by all workers. Maryland has a flexible leave act, which does not require paid sick leave. Rather, if an employer already provides for some paid leave, then an employee must be allowed to use their paid leave to care for a child, spouse or parent. Meanwhile, Ohio residents are talking about putting their proposed Healthy Families Act to a vote in the November election. In short, no other state in the nation has a law quite like the one currently proposed in H.B. 4447.

Forbes magazine just published its list of states known for their business climate. In 2008, West Virginia again stayed on the bottom of the Forbes list, 50^th out of 50. This legislation will do nothing to change the perception of business leaders that West Virginia is inhospitable to them and their companies. I am a mother, which by definition means I have had to care for a sick child. I am also someone who has lost family members to other states because of the lack of good paying jobs in West Virginia. I have concluded that a healthy West Virginia family includes one that gets to stay intact because West Virginia is economically healthy. This bill does nothing to create a strong and healthier West Virginia economy. Nor does really make our West Virginia families any healthier.