The Emergency Influenza Containment Act would guarantee up to five paid sick days for employees who are told by their supervisors to go home or stay home because of a contagious illness.

The measure was introduced on November 3 by Reps. George Miller, D-California and chairman of the House Education and Labor Committee, and Lynn Woolsey, D-California and chair of the workforce protections subcommittee.

At the hearing, Debra Ness, president of the National Partnership for Women and Families, argued that employees should decide when to use the sick leave.

“I think we need to tweak it here and there,” Woolsey said of the bill. “It really should not just be left up to the employer.”

At least one other Democrat also had misgivings about companies determining when employees should take days off for illness.

An emergency sick leave measure introduced November 17 by Sen. Christopher Dodd, D-Connecticut, and Rep. Rosa DeLauro, D-Connecticut, addresses the issue.

The Dodd-DeLauro bill, modeled after DeLauro’s Healthy Families Act, would guarantee up to seven paid sick days for workers to use to treat their own flu-like symptoms or to care for a sick child. Under the Miller-Woolsey bill, employees could only take time off for their own illness.

Under Dodd-DeLauro, the employee, not the employer, would determine when to take sick leave, although Department of Labor regulations could require certification.

Each bill would go into effect within 15 days of being signed into law and would sunset after two years.

“This temporary legislation will slow the advance of H1N1 being spread through the workplace and encourage open communications between employees and their employers on sick leave policies,” Miller said. “This emergency measure will not, and should not, supplant the need for comprehensive paid sick leave policies. But I believe it will be a circuit breaker needed to get this virus under control, while protecting workers, employers and the public.”

A witness representing the business community, however, asserted that the Miller bill could short-circuit paid time off policies that many companies have in place.

Bruce Clarke, president and CEO of Capital Associated Industries in North Carolina, said that it’s not clear whether or how the federally mandated sick days would mesh with existing PTO plans and other leave programs.

“If employers are mandated to provide a certain level of a specific leave benefit, they must decide whether to add that on top of existing employer leave policies or to reduce the existing in order to meet the new mandate,” Clarke said in prepared testimony.

Clarke also resisted the idea of employers directing employees to stay at home if they are sick. That could put companies in the position of violating privacy laws.

In exchanges with House labor panel members, Clarke defended the private sector’s response to the H1N1 outbreak. He said companies have shown creativity in helping employees deal with their health issues.

“The human resources professionals we work with every day are on top of it,” Clarke said. “These companies … care about their employees.”

He cited Bureau of Labor Statistics data showing that 93 percent of full-time workers and more than half of part-time employees have access to paid sick leave. But Miller pointed to government statistics that indicate that 50 million workers lack paid sick leave.

“There’s a universe of people out there who can be and are fired for missing a day of work for any reason,” Miller said.

Ness, who maintains that employers with PTO programs would satisfy paid sick leave requirements, argued that a federal leave safety net is necessary for low-wage workers.

“We need a basic labor standard,” she said.

During the hearing, Miller seemed as interested in culling information about the potential effect of the emergency sick leave bill as he was in promoting it.

“We’re going to go over this testimony,” Miller said in an interview. “Some of the [suggestions] were helpful.”

—Mark Schoeff Jr.

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