James R. Grasso, Coronavirus Dilemma

Coronavirus dilemma: For some, a choice between being sick and being paid

When employees don’t feel well, public health officials are urging them to stay home, hoping it will help stem the coronavirus outbreak.

But some workers face a tough choice. If they are not offered paid sick time by their employers, they will miss out on income by staying home.

Legislators in Albany and Washington are scurrying to address the issue, but those plans won’t cover all workers, leaving many with a dilemma.

The coronavirus outbreak has put a spotlight on the issue, and it has only complicated matters, with individuals who were exposed to someone infected with COVID-19 are being asked to isolate themselves for 14 days.

Employees in some industries can keep working from home under those circumstances. That’s not possible for service industry workers who have to be on-site to do their jobs, like preparing meals or cleaning hotel rooms.

It’s not a small problem. About 24% of U.S. workers don’t have access to paid sick leave, according to the Bureau of Labor Statistics. The sick leave issue particularly hits home in the service industry, where 40% of workers don’t have paid sick leave, according to federal labor data.

It’s especially an issue among lower-paid workers. The benefit varies across industries and wage levels. Only 30% of the lowest-paid workers have paid sick leave, while more than 90% of the highest-earning workers do.

Legislation passed by the House would grant two weeks of paid sick leave at 100% of the person’s normal salary, up to $511 per day. It would also provide up to 12 weeks of paid family and medical leave at 67% of the person’s normal pay, up to $200 per day.

But it would not cover everyone. And the loopholes became even larger after the House made major changes to the bill Monday night.

Small and midsized companies would be required to provide these benefits for workers affected by the coronavirus, but Labor Secretary Eugene Scalia could exempt businesses with fewer than 50 employees and health care providers such as hospitals and nursing homes. Gig workers and people who are self-employed also get these benefits in the form of a tax credit.

But large companies with more than 500 employees are not mentioned in the bill. Experts say that is a significant loophole. These employees would have to rely on the policies of the companies they work for. According to the Labor Department, 89% of workers at companies with more than 500 employees have access to some paid sick leave, with an average of eight days offered – well short of the 14-day quarantine prescribed for people who may have the coronavirus. House Speaker Nancy Pelosi, D-Calif., and Treasury Secretary Steven Mnuchin say big companies should step up and pay.

The issue also has drawn attention in Albany.  Gov. Andrew Cuomo last week agreed to paid sick time legislation to ensure quarantined workers are paid and don’t lose their jobs.

The new legislation would require employers with 10 or fewer employees and less than $1 million in profits to guarantee the jobs of quarantined workers and give them access to Paid Family Leave and short-term disability benefits to replace their wages lost because of the coronavirus. Employers with 11 to 99 employees and more than $1 million in profits would have to provide at least five days of paid sick leave, along with the job and wage protections. For companies with 100 or more employees, the sick leave requirement jumps to at least 14 days.

Provisions for permanent sick leave requirements included in the original agreement were deleted from the legislation approved by the Legislature Wednesday night after Republicans objected, citing fears it would hurt small businesses.

The Buffalo Niagara Partnership said it supported Cuomo’s swift action related to COVID-19. But the region’s largest business group disagreed with Cuomo tying the emergency response to permanent paid sick leave, which the Partnership said deserved more extensive debate.

“I don’t think there’s been enough discussion about what the (permanent paid sick leave) bill would actually do or how it’s going to be implemented, which is part of what we want to understand,” said Dottie Gallagher, the Partnership’s president and CEO.

Unshackle Upstate earlier this year called Cuomo’s paid sick leave proposal one of a few proposed mandates that “will hurt struggling businesses and chase jobs out of the state.”

But advocates of paid permanent sick leave said it’s overdue, to ensure workers aren’t forced to choose between going to work sick and losing out on income by staying home.

Federal law doesn’t require employers to offer their employees paid sick leave. But 12 states and the District of Columbia do, and so do some cities.

Some employers offer paid time off for workers that is not designated as sick time. Instead, workers get an allotment of paid time off each year, and apply it toward sick days, vacation days or personal time.

Jim Grasso, a partner in Phillips Lytle’s labor and employment group, said the coronavirus outbreak may prompt employers to rethink their view of sick leave.

“I think there’s a mindset among a lot of employers that if they offer more generous sick leave, that there’s a chance it may be abused,” he said. “Historically, sick leave has been relatively restricted because of that reason. Current circumstances may show that mindset – that philosophy – is no longer applicable and could hurt the employer in the long run.”

Employees who don’t receive paid sick time might feel compelled to come to work and use over-the-counter medicine to mask their symptoms, and end up infecting more people in the process, he said.

Kristin Klein Wheaton, a partner with Goldberg Segalla, said a lot of employers are looking at not only their sick leave policies, but also what to do with their employees if their business has to close down or suffers a sharp drop-off in customers due to the outbreak.

“They’re experiencing financial difficulty, even if they aren’t experiencing the virus in the workplace just yet,” she said. And those factors impact their workers, too.

Of those different circumstances, she said, the sick leave policy may be the most straightforward, because there are different ways to cover someone who is off due to illness or the illness of a family member.

Employers also have to take into account employee privacy when they’re dealing with an someone who has a health issue like COVID-19, Wheaton said.

Walmart said it would build on its own sick leave policy, by providing up to two weeks of paid leave for workers quarantined due to the coronavirus outbreak. Walmart workers diagnosed with coronavirus will also get up to two weeks of sick pay.

The Washington Post contributed to this story.