Dems Urge Big Cos. To Offer Paid Leave Amid Pandemic

Law360 (March 26, 2020, 7:19 PM EDT) -- Democratic Sens. Kamala Harris and Kirsten Gillibrand on Thursday pushed McDonald’s, Walmart and nearly three dozen other large U.S. companies to implement a paid sick leave policy similar to the one Congress recently instituted for businesses with fewer than 500 workers during the novel coronavirus pandemic. 

The senators from California and New York, two of the hardest-hit states, sent nearly identical letters to the leaders of large companies who aren’t subject to emergency paid leave provisions of the Families First Coronavirus Response Act, which was enacted last week as part of a broad federal effort to mitigate the impact of COVID-19, the disease caused by the novel coronavirus.

“As our nation continues to respond to the rapidly evolving COVID-19 pandemic, we urge you to put public health ahead of profits and provide your employees with the full scope of economic protections, including paid sick days and paid family and medical leave,” the two Democratic senators told business leaders in their letters. “Your immediate action is crucial to both the economic security of American workers and to our nation’s ability to combat the spread of this deadly virus.”

The Families First Act was enacted to help millions of Americans weather the economic storm brought on by the virus, including its requirement that businesses with fewer than 500 workers provide emergency short- and long-term paid leave. The law takes effect April 1 and will expire on Dec. 31.

The law provides two weeks of time off at full pay to workers who can't work for various reasons connected to the virus, such as being quarantined. The law applies to part- and full-time workers, providing them as many hours off as they generally work in two weeks, up to 80 hours.

Additionally, employers must pay employees at their full wage if they are taking time off for themselves or two-thirds of their regular pay if they have to care for a family member, up to certain caps. The bill also amends the Family and Medical Leave Act to give workers long-term paid time off at partial pay if they can't work because their child's school has closed.

The U.S. Department of Labor issued guidance earlier this week stating that the workers who are on leave and temporary workers or day laborers can be included as part of a company’s calculation to determine if it hits the 500-employee threshold, but that independent contractors can’t be counted.

While the law does not exclude smaller employers, it directs the DOL to issue regulations exempting businesses with 50 or fewer workers if making them pay leave would jeopardize their business.

Harris and Gillibrand said in their letters that even though the law “is a positive step” toward saving lives and slowing the rapid spread of COVID-19, it isn’t enough, since many workers won’t be able to avail themselves of its protections. 

They said that large companies with more than 500 employees, which are exempted from the paid leave requirements, employ 54% of American workers. And the hardship exemptions that small businesses can obtain could swell the number of workers without access to paid leave during the outbreak to up to 80% of the American workforce. 

As such, Harris and Gillibrand called on leaders at the three dozen large companies to on their own bolster the protections they offer, asking that they “at a minimum” give employees two weeks of emergency paid sick leave and an additional 10 weeks of job-protected paid family and medical leave for the duration of the COVID-19 pandemic. 

They also wrote that COVID-19 “does not discriminate based on a worker’s classification,” adding that the emergency measures companies take should apply to all workers, including contract workers and those who work at franchise locations.

Moreover, they said, the companies should put disciplinary actions for absences on hold. After the current crisis subsides, companies should offer workers health insurance and access to paid sick days, since “this will not be the last public health crisis we face,” the senators said.

“Working Americans across industries are facing challenges deciding if they should go into work sick or forgo a paycheck, affording child care during school closures, and putting food on the table in the wake of reduced hours,” they said in a joint statement issued by Harris’ office. “Paid sick days and paid family and medical leave can both ease the burden of these challenges and slow the spread of COVID-19, allowing workers to comply with the Centers for Disease Control and Prevention’s recommendation to stay home if they are feeling ill.”

Besides McDonald’s and Walmart, businesses thsy received similar letters from Harris and Gillibrand include retailers Kmart and Target, grocery chains Kroger and Wegmans, pharmacy chains Walgreens and CVS, and various fast-food businesses like Subway, Burger King and Wendy’s.

The senators also highlighted actions that other large businesses have taken in response to COVID-19, singling out Starbucks for offering workers affected by COVID-19 up to two weeks of full pay and up to 26 weeks of additional pay replacement on top of free access to mental health resources, and Salesforce and Patagonia for deciding to pay all their employees in full during the pandemic despite them having to shutter physical locations. 

The letters from Harris and Gillibrand come on the heels of a letter sent by the attorneys general of 14 states and Washington, D.C., to Whole Foods and its owner, Amazon, urging the grocer and the online retail giant to enact the same paid sick leave policy that Congress enacted as part of the Families First Act.

--Additional reporting by Braden Campbell. Editing by Alanna Weissman.

For a reprint of this article, please contact reprints@law360.com.

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