By: Jayna Genti, DiMuroGinsberg P.C.
When the 2021 Virginia General Assembly reconvenes, the session will inevitably be colored by the ongoing COVID-19 pandemic. For starters, the House of Delegates plans to gavel in its regular session virtually, with the state Senate again planning to meet at the Virginia Science Museum to provide for greater social distancing. Significantly, lawmakers are set to resume debate over whether to require employers to offer paid sick and family medical leave.
Movement toward paid leave
About 1.2 million Virginians have no paid sick time or family leave, according to a November 2020 study by the Shift Project. To address the lack of paid leave, various members of the legislature for years have pushed to pass laws requiring most employers to provide the benefit. The members argue the legislation would help maintain the state’s competitive edge in attracting workers, as Maryland and 13 other states plus the District of Columbia have already enacted such protections for employees.
And, with the rise of the COVID-19 pandemic, the importance of paid leave legislation to both employees and the public health has never been clearer. According to Richmond and Henrico County Health Director Dr. Danny Avula, the spread of the coronavirus in the Commonwealth could have been drastically reduced if paid leave had been available to more workers. That’s because “the vast majority of our exposures and our outbreaks are happening in workplaces,” Avula said.
The situation is exacerbated by the fact that many people who lack paid sick leave earn low wages, such as grocery and fast-food workers. They don’t have the option to work remotely. “Many of them are the front-line jobs that keep this country running in the pandemic,” said Delegate Elizabeth R. Guzman of Prince William, who advocates for a paid leave mandate. “No one should have to choose between their health and a paycheck.”
“If the pandemic has taught us anything, it’s the importance of staying home when you’re sick,” said Kim Bobo, executive director of the Virginia Interfaith Center for Public Policy, which is part of a coalition called Virginians for Paid Sick Days that was formed to advance the issue.
Last year’s unsuccessful efforts
Nevertheless, actually enacting a paid leave law during the legislative session will be an uphill battle. In 2020, the Virginia House and Senate passed slightly different versions of a paid sick leave bill, but the legislation died in the Senate in March, just as the state was recording its first COVID-19 cases. A major sticking point was offering the benefit to part-time workers, many of whom don’t have the option to work remotely.
During an extra-long special legislative session that ran from summer to fall, a compromise effort to offer 10 days of paid leave if employees or their relatives contracted the coronavirus also failed. The failure occurred in part when members disagreed over what businesses to exempt: (1) employers with fewer than 25 employees under the bill backed by Governor Ralph Northam or (2) employers with fewer than six employees under Guzman’s bill. The measure advancing the furthest, from Senator Barbara A. Favola of Arlington, would have exempted employers with fewer than 15 employees.
This year’s push
In 2021, legislators are still working out their bills’ details. Favola plans to introduce a bill requiring only employers that already offer a sick leave program to allow employees to use up to five days of the benefit to care for an immediate family member who is ill. In its current form, the bill would exempt employers with fewer than 25 employees.
Guzman, who is running for lieutenant governor, plans to sponsor a much more robust measure that would apply to businesses with 26 or more employees. The legislation would require certain businesses to provide at least five paid sick days to full-time employees (part-time workers wouldn’t be covered). The paid sick leave envisioned by both bills could be used for not only the coronavirus but also any type of serious health condition.
Under Guzman’s proposal, the paid leave mandate would apply to at least eight categories of employees defined as “essential,” including those working in emergency services, food plants, child care, domestic work, education, health care, and home health care. The requirement also would cover employees of essential retail businesses, as defined by Governor Northam’s Executive Order dealing with the COVID-19 pandemic. The order encompasses staff at grocery stores, pharmacies, liquor stores, convenience stores, gas stations, banks, and pet stores, among other establishments.
“We’re really narrowing down the bill to essential workers because after speaking with a few senators, they said it’s something they could support,” Guzman said. “We would love to give it to the 1.2 million Virginians that don’t have access currently, but the reality is we don’t have the votes.” And, as a safety valve, Guzman’s bill also will include a provision allowing certain businesses experiencing serious financial hardship to be exempted from the mandate.
Outlook for legislation
The chances look good for legislation mandating some version of paid leave to pass the House of Delegates. Even in a narrowed form, however, any legislation likely will have a hard time in the Senate. Moreover, should an employer paid sick leave mandate make its way through both chambers, the legislation likely wouldn’t take effect until at least July 1, 2021.
Given the importance of the issue, we will continue to monitor the progress of the paid leave laws in this year’s Virginia legislative session. Stay tuned for further developments.
Jayna Genti is an attorney with DiMuroGinsburg PC in Alexandria, Virginia. She may be reached at firstname.lastname@example.org.