As concern over the H1N1 influenza virus and other infectious diseases intensifies, so do potential financial implications for businesses. Currently, paid sick leave is not required by U.S. laws as a general matter and, as a result, approximately 48 percent of American employees do not have paid sick leave. That may change. In November of 2009 a bill, entitled the Emergency Influenza Containment Act (“the EICA”), was proposed in Congress. The EICA would require U.S. employers, who direct their employees to stay home when they are sick, to provide paid time off for up to five days. The proposed law would cover pandemic H1N1 influenza or any other infectious disease.

The U.S. Center for Disease Control and Prevention has advised employers to encourage sick employees to stay home in an effort to avoid the spread of the H1N1 virus. Many employees, however, are afraid or cannot afford to take unpaid time off. There is fear, accordingly, that many will report to the workplace when they are ill and expose other employees. To address this concern, the EICA would apply to both full and part time employees who are either directed or advised to leave work, or told not to report to work, “because the employer believes the employee has symptoms of a contagious illness, or has been in close contact with an individual who has symptoms of a contagious illness.” The proposed EICA defines “contagious illness” to include “influenza-like-illnesses” such as H1N1. Employees covered under the EICA would be entitled to an amount of paid sick leave based on the “employee’s regular rate of pay” and scheduled hours of work. Employers who violate the EICA would essentially face the same penalties as those who commit minimum wage violations under the federal Fair Labor Standards Act such as damages, monetary penalties, and attorneys’ fees.

An employer would be able to end paid sick leave at any time under the EICA by notifying the employee of the employer’s belief that the employee is well enough to return to work. Employers with less than 15 employees, and those that already provide five or more paid sick days per year, would be exempt from the requirements of the EICA. The proposed legislation also contains provisions that would prohibit employers from discharging, disciplining, or retaliating against workers who comply with an employer’s directive to stay home.

Some states and cities have already passed mandatory sick leave laws including San Francisco, Milwaukee, and Washington D.C. Legislation that would require businesses to provide paid sick days has been proposed in Minnesota in past years, but has failed when lawmakers refused to address it before legislative deadlines passed. It is likely, however, that legislation mandating some form of sick leave measures will again be proposed in Minnesota in the upcoming legislative session.