By Steve Haner
Employees caught in this pandemic with no paid time off for health issues have been in a deep bind, and many of those with reasonable leave available have probably burned it all. It is one of several problems exacerbated by this government-led economic crash.
Congress, in a bipartisan response supported by President Donald Trump, created a temporary mandate in one of its early COVID-19 relief bills. It can provide as much as 12 weeks of paid leave (more here). Some in the Virginia General Assembly think that is not good enough.
In the regular session before the pandemic, the Virginia House of Delegates considered a generic state-mandated paid leave program, a bill eventually rejected by the Appropriations Committee. Now in special session, with the pandemic adding great urgency, the House is trying again. This bill, as well, needs to fail. It is narrower and would expire by next summer, but it still needs to fail.
As introduced a few weeks ago, House Bill 5116 (from Delegate Elizabeth Guzman, D-Woodbridge) applied to both public and private employees. It was the potential cost on state and local governments that sank Guzman’s bill from the regular session, so she is instead advancing a substitute that applies to private employees (including non-profits), but exempts the state.
That alone is a fatal flaw. The General Assembly should never impose an employee benefit mandate on private employers it is not willing to accept for its own workers. That should be the rule for health insurance, for pay and benefits, and for workers compensation. Once they start down the road of exempting their own employees and budget, there is nothing to restrain the legislators.
What does this bill do?
Any employee working 20 hours or more per week is entitled to paid leave equal to the same value per week for their own COVID-19 illness or quarantine, or that of a family member. If the illness or quarantine extends beyond two weeks, the employee gets no more money, but their job must be held. There is nothing in the bill that limits this to one occurrence per employee or exempts companies that already have reasonable leave policies.
On its face, it applies only to employers with more than 50 employees, but there is a catch: “…unless a grant program dedicated to assisting employers provide paid quarantine leave, funded by federal COVID-19 pandemic relief funds, is available to such employers in the Commonwealth.” If such a fund exists, is there any guarantee the employer will get help? No. But the mandate is then imposed. The General Assembly could create such a fund and put in $1.
The coordination with the existing federal mandate is tricky, but Guzman’s goal is to make sure the law picks up anybody not covered by the federal program.
- An employer that provides an eligible employee with paid quarantine leave as required by any other state or federal law, paid sick leave, or other paid leave shall be deemed to have satisfied its obligations under the provisions of this section with respect to such eligible employee, provided that such leave can be used for the purposes set forth in subsection B and the eligible employee is provided an amount of paid leave that meets or exceeds (emphasis added) the requirements of subsection A.
If the state benefit would be larger than the federal benefit, the employer must make up the difference. And, as is standard with today’s General Assembly output, employers may be sued by employees up to two years later if the worker feels they were denied leave improperly. Many bills now include a new civil cause of action against employers.
The state might not escape all costs. Most Medicaid services are provided by private companies, and the fiscal impact statement on the original bill saw costs approaching $30 million per year, since the state program would be reimbursing them. That gives you some idea of the cost through the whole state economy.
There is also a vague, but still enforceable, requirement that employers provide sick leave in the state’s new COVID-19 workplace safety regulations. How that interconnects with the federal requirements and this bill is yet another complication.
The bottom line here is that too many in this newly “refreshed” General Assembly see the state’s employers as (1) exploiters or (2) in the words of Winston Churchill, “a cow they can milk.” Most employers have busted their tails to find a way to work through this mess and maintain as many employees as they can. How many they can afford to hire back remains a concern.
The following comes from a letter sent to legislators seeking votes against this bill, from a coalition of business entities. The Thomas Jefferson Institute for Public Policy is a signer.
For months, Virginia’s businesses have faced intense stress as they were ordered to close or operate in an extremely limited capacity. The economic turmoil suffered by the business community during the global pandemic has only somewhat abated as Virginia has gradually reopened. Many businesses have watched helplessly as their revenue slowed to a trickle or dried up entirely. Business owners continue to temper their expectations of future economic conditions as the COVID-19 public health crisis is expected to continue.
Without question, it is a whole lot safer to kick somebody when they are down. Too many of these legislators are enjoying the opportunity to do that to the Commonwealth’s employers.
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