Welcome

Paid Leave Inches Ahead in States, as Congress Avoids a Mandate

Feb. 25, 2021, 8:06 PM

The latest Covid-19 stimulus package isn’t likely to yield a federal mandate for paid leave—despite what advocates see as a strong public health impetus—leaving the issue for now to cities and states, where such mandates continue to spread slowly but surely.

The $1.9 trillion stimulus package proposed by President Joe Biden initially included a revival and expansion of last year’s mandate for employers to provide virus-related paid leave. But the stimulus legislation pending in the U.S. House leaves out that requirement, instead opting to extend federal tax credits for employers who voluntarily offer emergency paid leave, just as Congress did with the stimulus enacted in December.

The mandate’s omission from the House bill released Feb. 19 was good news to business owners who fear additional government regulation could hobble their economic viability in the pandemic. For proponents of paid leave policies, however, it’s an unexpected setback.

“It is a surprise when it comes to the state of play in Congress at the moment,” said Jared Make, vice president at the left-leaning policy group A Better Balance. “We just marked 500,000 people who have died from Covid-19 and individuals across the country are continuing to die every day. The fact that there’s no federal right to paid sick leave for workers in this country is especially shameful at the moment.”

He pointed to research showing broader availability of paid sick leave helps slow the spread of infectious disease. A study from the nonprofit group Health Affairs estimated the availability of emergency paid leave last year prevented more than 400 Covid-19 cases per day in each state where workers newly gained paid sick leave under the Families First Coronavirus Response Act.

Democrats Press for Policy

In a letter Tuesday, 98 Democratic House members—led by Reps. Ayanna Pressley of Massachusetts and Rosa DeLauro of Connecticut—urged Biden and congressional leadership to include a permanent paid leave policy in a future round of economic recovery legislation, while acknowledging the current $1.9 trillion package likely won’t mandate paid leave.

With narrow control of the Senate, Democrats face doubts about whether that mandate could be deemed sufficiently budget-related to pass under the Senate’s budget reconciliation process, which Democrats might use to pass the stimulus package without Republican support.

Millions of workers lacked access to paid leave before the pandemic, according to Bureau of Labor Statistics data from March 2020—with nearly a quarter of the private-sector workforce lacking paid sick time for short-term illness and 80% lacking paid family leave to care for newborn children or a family member’s serious health problem.

A combination of government mandates and voluntary benefit offerings announced by large employers pointed to improved access last year, although via mostly temporary pandemic responses. Worker advocates are hoping to seize the moment of the pandemic as a chance to advance not just emergency-response measures but permanent paid leave requirements, if not through Congress then via state legislatures.

Colorado and New York State enacted both emergency sick leave and permanent sick leave mandates last year, bringing the count to 15 states plus the District of Columbia with those requirements.

Momentum in New Mexico, Maryland

State and local legislative action around paid leave has been relatively quiet in 2021, although many states are still early in the legislative process. More than 30 cities and states enacted emergency leave mandates last year in response to the pandemic.

Still, business groups such as the National Federation of Independent Business see threats of new or expanded mandates in a handful of states including Maryland and New Mexico, said Tim Goodrich, the NFIB’s executive director of state government relations.

“There have been a lot of bills introduced. Only a couple are moving that I’m aware of,” Goodrich said. “Businesses are trying to stay afloat, and another mandate isn’t good. For the most part people are hearing that message.”

A pair of bills that have won initial approval in New Mexico House committees would require employers to provide paid sick days (HB 20) and paid family and medical leave (HB 38).

It’s a state of particular concern for business advocates, Goodrich said, noting New Mexico has ranked among the most restrictive economies in terms of continuing business closures and capacity limits, making it difficult for companies to survive.

“That will be a tough pill to swallow if it passes,” he said of the New Mexico paid leave legislation.

A new coalition of community groups in Delaware announced a campaign to push for paid family and medical leave legislation this session, via legislation expected to be filed next month.

“The pandemic has shown that these kinds of policies are urgent and needed for families who are struggling right now,” said Liz Richards, executive director of the new Delaware Cares Coalition. “People are facing impossible choices between their job and their family.”

Maryland lawmakers are considering a proposal to provide hazard pay, paid sick days, and other job protections and benefits during declared states of emergency to “essential workers,” defined as any workers whose jobs can’t be completed remotely or must be performed at the job site. Companion bills SB 486 and HB 581 are both pending committee review and would expand on the state’s existing paid leave requirements.

“This is one that we’re aggressively working right now,” Goodrich said.

Maryland’s Republican governor, Larry Hogan, has previously vetoed workplace mandates, but the Democratic-majority legislature in some instances voted to override him, as it did with a 2019 measure to gradually phase in a $15 hourly minimum wage.

Paid-leave advocates in Virginia are facing another disappointing session after the state’s Senate blocked paid sick leave legislation last year. A 2021 bill, HB 2137, that proposed to mandate paid sick leave for essential workers was scaled back in Senate committee this week to cover only home-health care workers.

Apart from new mandate proposals, states such as California, Connecticut, and Massachusetts are considering expanding their existing paid leave requirements in response to the pandemic, Make said.

Already in 2021, at least 10 California cities and counties have renewed or expanded emergency paid leave ordinances that they first enacted as temporary measures in 2020.

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

To read more articles log in.

Learn more about a Bloomberg Law Subscription.