Marshall H. Tanick is an attorney with the law firm of Mansfield, Tanick & Cohen, P.A., in Minneapolis and St. Paul. He represents employers and employees in a variety of workplace-related matters. His e-mail address is tanicm@mansfield

Too sick to work? That's simply too bad

  • Article by: MARSHALL H. TANICK
  • July 5, 2009 - 10:28 PM

Employees in Minnesota do not have the right to be sick or to take time off for a summer vacation.

To the surprise of many and chagrin of some, the paucity of rights for employees to be sick or take a vacation is a reality. That plight might be alleviated by recently introduced legislation that would give employees in Minnesota and elsewhere the right to be sick and take a vacation, too. One measure would require most companies to give employees up to one week of paid sick leave per year. The other would mandate that large businesses give their workers at least a week of paid vacation annually.

The sick leave bill, known as the Healthy Families Act, was introduced in Congress this spring. Championed by Sen. Ted Kennedy, D-Mass., and several dozen other Democrats in Congress, it would allow employees at companies with 15 or more workers to obtain up to seven paid sick days per year for themselves or to care for family members; one hour of time off would be earned for every 30 hours worked, up to seven days each year.

The bill addresses the lack of sick leave for most employees, especially in the private sector. Those who do not work for large companies or who are not members of labor unions generally do not have any right to sick leave at all. Many employers have policies allowing some sick leave, but they are not obligated to have such policies and management can, and often does, change those policies on a whim.

The Family Medical & Leave Act (FMLA), a federal law in effect for the past 15 years, grants employees who work for businesses with 50 or more employees up to 12 weeks of unpaid leave of absence per year for sickness for themselves or their family members or for child adoptions. But the measure barely covers half the workforce, does not apply to employees during the first year of employment and does not extend to part-time employees. The large number of employees working at smaller companies, who work part time or have not worked one year consecutively for an employer are not covered by the FMLA.

Even long-term, full-time employees at large companies experience gaps under the law. Because an employee must be absent for at least four consecutive days with a "serious" condition, the law does not cover many short-term or intermittent diseases, ranging from heavy doses of flu to other modest afflictions. An employee must have certification from a medical provider, which usually means going to a doctor. This is difficult for many employees, especially for those who lack insurance or for the insured with large deductibles and co-pays.

Sick pay can save

Unlike 20 jurisdictions, including Washington, D.C., Minnesota does not have its own mini-FMLA. These other states, including Wisconsin, extend short-term unpaid leaves to employees working for small or midsize companies. The closest analogy in Minnesota is a law allowing parents up to 16 unpaid leave days per year to attend their children's school activities.

But the law does not permit employees in Minnesota to take time off from work for their own illness or sickness of a family member. So a parent in Minnesota can miss work to attend a child's school soccer game, but if the child is injured and has to recuperate at home, the employee is not legally entitled to take time off to care for the child at home.

This system is in need of reform. A large portion of the workforce in Minnesota and the rest of the country, including a startling 75 percent of low-wage workers, does not have any sick leave at all. This means their pay can be docked, or they can even be fired, if they miss a single day of work. While few employers would be so loutish as to fire someone simply for being sick, the risk exists, and often materializes for more extended absences.

Many employees are disinclined to stay home when they are sick for fear of losing pay or even their job. Thus, they trudge into work, bringing with them illnesses and contagious diseases that spread in the workplace, costing an estimated $180 billion in productivity losses annually, according to the bill's authors.

Vacation concerns

The vacation measure also is viewed as a matter of health. Known as the Paid Vacation Act, the bill now in Congress would require employers with 100 or more workers to allow their employees one week paid time off of work each year, which would extend to companies with 50 or more workers after three years.

The bill notes that about half of American workers took only one week of vacation last year, and fewer than 15 percent took two weeks or longer. The United States is the only industrialized country in the world that does not require employers to provide some paid vacation for its workforce.

Employees in Canada are entitled to two weeks, many western European countries require four to six weeks of vacation per year, and even in China, workers must be given three weeks vacation per year. This means sweatshop employees turning out tennis shoes in China get more vacation time than the typical Americans who wear them.

The vacation bill also has an economic motivation. It claims that allowing more vacations would help boost the $740 billion travel industry, while reducing the $300 billion in lost work time attributable to "stress and burn-out."

Both sick leave and vacation measures may have a rough time navigating through Congress. Although supported by the Obama administration, business groups disdain them as too inflexible and onerous and Republicans seem staunchly opposed.

Meanwhile, in Minnesota, a bill that would have required companies with more than 10 employees to provide minimum sick leave for their workers did not make it out of legislative committees, although the measure is expected to return to the docket in 2010.

When the state Legislature reconvenes next year, both sick leave and vacation laws should be high on its agenda. They would be beneficial to businesses, employees, the economy and the overall health of the state.

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