Introduction 1032 I. The Movement for Paid Sick Time Has Been Grounded in Local Innovation and Progress 1037 A. History of the Paid Sick Time Movement and Its Rapid Growth 1037 B. Local Lawmaking as a Strategy to Build Towards Statewide Rights 1041 C. Local Paid Sick Time Laws as a Source of Innovation for the Movement 1042 D. Key Stakeholders and Players in the Paid Sick Time Movement and the Tools That Have Advanced the Cause 1045 II. Preemption as a Response to Local Innovation 1049 III. COVID-19: The Pandemic Forced Federal Action and Highlighted the Need for Nationwide Paid Sick Time, but It Is State and Local Governments that Have Responded Most Robustly 1056 A. The Temporary Families First Coronavirus Response Act 1057 B. State & Local Paid Sick Time Advances in Response to COVID-19 1058 Conclusion 1064
INTRODUCTION
The United States is the only wealthy country in the world that does not guarantee its workers a right to paid sick time. (1) Without access to paid sick time, workers are forced to choose between their job and caring for their health and the health of their family members. In fact, 28 million Americans do not have access to even a single day of paid sick time each year, and therefore must risk their economic security every time they--or a family member for whom they care--experience an illness or health crisis. (2) Among those working individuals who do receive paid sick time from their employers, many often face significant restrictions imposed by their employers. Many employers have policies with rules and requirements that, in practice, prevent workers from taking time off when they are sick, while many others have policies that actually penalize workers for using sick days to which they are entitled. (3) Fortunately, there has been an increasing effort in the United States to legally guarantee paid sick time to workers.
Research shows that there is a critical need for universal, guaranteed paid sick time in the United States. Data on the U.S. labor market demonstrates that this benefit is not offered uniformly. The U.S. Department of Labor's Bureau of Labor Statistics estimates that as of March 2023, more than one in every five workers lacks access to paid sick time. (4) Moreover, lower-income workers are much less likely to have sick days than higher-income workers: though 96% of workers in the highest income decile have at least some paid sick days, only 39% of workers in the lowest income decile have any access to this benefit. (5) Furthermore, only 61% of service workers have any paid sick days--a slight decrease from 2022, when 62% of service workers had access to some paid sick days. (6)
The existing disparities in access to paid sick time exacerbate longstanding racial, ethnic, and gender disparities as well. Since the country's lowest-income workers are least likely to have paid sick days, it is important to specify which workers are most likely to fall into that category. BIPOC (Black, Indigenous, and People of Color) individuals are more likely to be lower-income. (7) In fact, only 49% of Latine people and 60% of Black, non-Latine Americans have access to any sick days. (8) Women are similarly overrepresented among the low-wage workforce in the United States. (9) This disparity is partially because women are more likely to work part-time; in fact, 27.9% of all working women work part-time, compared to 17.2% of all working men. (10) Many women are forced to work part time due to caregiving responsibilities, as two-thirds of all family caregivers in the United States are women. (11) Part-time workers are much less likely to have paid sick time than full-time workers: only 51% of part-time workers have paid sick time, compared to 86% of full-time workers. (12) Meanwhile, over half (54%) of working mothers lack paid sick days that can be used to care for a sick child, and they have no access to pay if they take such time. (13) Access to paid sick time is therefore an issue of economic, racial, and gender equity.
The lack of federal action on paid sick time is especially concerning given the wealth of data showing the benefits of paid sick time for workers and families, business owners, and overall public health. A thriving business community requires a healthy workforce, and caring for public health requires caring for all members of the community. Therefore, both workers and business owners benefit from improvements to public health.
For instance, paid sick time allows workers to access medical care when they need it, increasing access to necessary care and reducing the time needed to recover from illness. (14) Access to paid sick time increases workers' use of preventive care, making them more likely to visit a doctor, undergo cancer screenings, and get recommended procedures such as mammograms. (15) In fact, it has been estimated that national access to paid sick days would result in approximately $1.1 billion in savings in hospital emergency department costs each year, as workers would no longer rely as heavily on emergency room visits (since working individuals could better address health concerns before they become emergencies, and regular medical care could be sought more easily during the workday). (16) Of those savings, $500 million would go to publicly funded health insurance programs such as Medicare, Medicaid, and SCHIP. (17)
Workers' economic security suffers when they cannot utilize paid sick time. Workers without this critical workplace right are more likely to struggle to afford monthly bills like groceries, rent, and utilities, (18) more likely to have difficulty paying off long-term expenses like debt and medical bills, (19) and 25% more likely to experience job loss. (20) Economic instability incurred by a lack of paid sick time also has clear harms to individuals' health: lost income "worsens mental health, aggravates chronic health conditions, and results in academic disruption for children." (21) The data is clear that workers suffer when they cannot take the time off they need from work to care for their health and the health of their families.
Furthermore, the benefits of paid sick time that businesses realize outweigh the associated costs. On average, paid sick time is estimated to cost employers an additional gross 2.7 cents per hour per employee. (22) However, a twenty year meta-analysis published by the American Journal of Industrial Medicine in 2022 found that paid sick time also benefits employers in many ways, primarily through reduced "presenteeism" (lost employee productive time due to health issues), improved employee job satisfaction, improved employee retention and ease of hiring, and improved employee health and safety. (23) In fact, the Journal of Occupational and Environmental Medicine found that just one of these benefits, reduced presenteeism, can outweigh the employer costs of employee absences from paid sick time. (24)
Comprehensive paid sick time also has community-level public health benefits. Without paid sick time, people are 1.5 times more likely to go to work with a contagious illness like the flu. (25) In contrast, access to paid sick time reduces the spread of contagion, and workers are more likely to get vaccinated for diseases like the flu when they can utilize paid sick time to do so. (26) The benefits are particularly stark for essential service-sector workers; while workers in these industries are among the least likely to have access to sick time, they have some of the highest rates of contact with the public. Only 45% of retail and fast-food workers have paid sick time, (27) and only 28% of restaurant workers report having access to paid sick time. (28) Lastly, paid sick time reduces on-the-job injuries by 28%, further improving the public health. (29)
The above data shows that the urgent case for paid sick time is not theoretical, yet the federal government has failed to guarantee this critical benefit to all workers. The dearth of action at the federal level has spurred many local and state governments to fill this gap for workers. (30) Over the past two decades, 34 jurisdictions have passed paid sick time laws that remain on the books today. (31) Though the COVID-19 pandemic finally pushed the federal government to act by passing the Families First Coronavirus Response Act, this legislation was temporary. (32)
It is at the state and local level that progress has continued to grow and serve American workers and their families, with local government innovations leading the way. Part I of this Article explores the history of the paid sick time movement in the United States, highlighting the important role of local governments whose innovative solutions have become the basis for policy-making elsewhere. Part II outlines one of the major drawbacks and oppositional responses to local paid sick time policies: state-level preemption. Lastly, Part III describes the federal and local response to COVID-19 in the context of paid sick time, with a focus on how the temporary federal response was bolstered by both new and pre-existing local laws. The COVID-19 pandemic clearly demonstrated this country's desperate need for a nationwide right to guaranteed paid sick time. In the absence of such federal action, the pandemic underscored the continued importance of local action to support workers' need for guaranteed paid sick time, while also showing how the limitations of local and state victories highlight the need for more robust federal protections.
I. THE MOVEMENT FOR PAID SICK TIME HAS BEEN GROUNDED IN LOCAL INNOVATION AND PROGRESS
A. History of the Paid Sick Time Movement and Its Rapid Growth
The first paid sick time law in the United States was passed by ballot initiative in San Francisco in November 2006. (33) Until then, paid sick time had been considered a supplemental benefit offered to workers by their employers, rather than a right that benefitted workers, their families, and public health. A...
