The Need For Permanent Paid Family and Sick Leave

COVID-19 Is A Wake-Up Call For Workers’ Rights

By Nicholas Giurleo

COVID-19 and Workers’ Rights Series

The COVID-19 and Workers’ Rights series will publish essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, look at the pandemic from the perspective of workers’ rights.

The coronavirus disease 2019 pandemic has hit closer to home than I ever imagined it would. A walk through my town square from where I park my car everyday to the law office I work at could not make this more evident. That lively ice cream shop where I used to go every Sunday afternoon to play chess with my friends over an Oreo cookie sundae is now dark and deserted. The windows of the tiny hole in the wall across the street that I call my barbershop are now covered with white paper, with a sign that reads, “The city shut us down. Will be closed until at least April 6th,” forebodingly posted on the door. 

What once was a main street to cross more treacherous than the Amazon River is now devoid of all automobiles, so empty that I have walked along its center yellow line on my way to my office building like a trapeze performer, without a worry in the world of being flattened.

The human but also the economic toll of the COVID-19 pandemic has been devastating. By April 2020, some 22 million Americans have filed for unemployment benefits, potentially as high as 15% of the United States labor force. The reality on the streets and these staggering numbers have raised real concerns over workers rights, posing a new, formidable question policymakers and labor rights activists alike must face: How can we ensure that the rights of workers are better protected during future emergency crises, such as a global pandemic? To begin answering this question, we first turn to two sub-questions: what does existing legislation provide for, and what has posed problems?

Although it is often very challenging to be fully prepared for a disaster, a number  of existing employment laws, including several federal statutes, are implicated. The Family and Medical Leave Act (FMLA), for instance, provides that covered employers must provide employees job-protected, unpaid leave for specified family and medical reasons, which could include the flu.

Similarly, on March 18, 2020, Congress passed the Families First Coronavirus Response Act (FFCRA) to specifically address exigent employment concerns of the pandemic. The new legislation requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19, to include for covered employers two weeks of paid sick leave at the employee’s regular rate of pay where they are under quarantine or are unable to work due to a bona fide need to care for another under quarantine.

Legislation like the FMLA and the nascent FFCRA only begin to address the need of providing paid leave benefits during outstanding employment circumstances, but run into the general, persisting problem in labor rights of limited coverage. 

The FFCRA, for example, falls short of addressing the paid leave needs at places of employment with more than 500 employees, federal employees (for paid family leave), and those who could be exempted because they are healthcare workers, emergency responders, or they work for an employer with fewer than 50 employees. Even when management of a company with, say, over 500 employees, voluntarily chooses to provide a paid leave program, the potential impact of extended school closures and long infection recovery times (of at least two weeks for COVID-19) forces those uncovered employees into precarious financial corners, often requiring them to dig into savings and risk gambling with ignoring public health guidelines and returning to work still unrecovered. 

With about 40% of workers uncovered by the FMLA and only about 15% eligible for employer-sponsored paid leave, the COVID-19 crisis speaks to a critical future challenge that policymakers and labor rights activists alike will have to confront: the growing need for permanent paid leave legislation. Along the spirit of proposals for an “Essential Workers Bill of Rights”  must lawmakers ensure that all workers are provided paid family and sick leave and are not forced to compromise their own safety to protect the livelihoods of themselves and their families. 

The strain that many of the millions of unemployed Americans face due to the COVID-19 pandemic should be a wake-up call to all working Americans that there is a need to fill gaps in existing emergency paid leave legislation, before the next crisis strikes.

Reflections from Charles Joseph

The coronavirus pandemic has drastically reshaped the workplace, with many now working from home indefinitely and millions more unemployed. But, as Nicholas Giurleo’s essay reminds us, the crisis offers an opportunity to strengthen workers rights by extending paid family and sick leave laws. In addition, workers’ rights proponents should push for stronger FMLA retaliation protections for when employees use their paid leave. Finally, new laws must also consider the position of independent contractors often excluded from paid leave policies. 

Nicholas Giurleo earned a bachelor’s degree in international relations and history at Tufts University and works as a writer and legal assistant for a criminal defense firm. He also writes and edits for Foreign Brief, a geopolitical risk analysis publication. Giurleo joins Boston College Law School in fall 2020. Contact Giurleo on LinkedIn. 

Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $140 million for clients.