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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 2790 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                S. 2790

 To allow Americans to receive paid sick time so that they can address 
their own health needs, and the health needs of their families, related 
                        to a contagious illness.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                           November 17, 2009

  Mr. Dodd (for himself, Mr. Harkin, Mr. Franken, Mr. Brown, and Mr. 
   Merkley) introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL

 
 To allow Americans to receive paid sick time so that they can address 
their own health needs, and the health needs of their families, related 
                        to a contagious illness.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Pandemic Protection for Workers, 
Families, and Businesses Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) According to the Bureau of Labor Statistics, between 
        50,000,000 and 60,000,000 United States workers have no paid 
        sick leave to use when they or their family members are sick. 
        Only 1 in 4 low-wage workers has paid sick days and often low-
        wage workers are the workers most likely to have jobs that 
        require frequent contact with the public.
            (2) The lack of paid sick days presents a threat to the 
        United States economy and to public health, particularly in the 
        face of a pandemic illness such as the 2009 H1N1 influenza. The 
        Centers for Disease Control and Prevention reports that an 
        individual who comes to work with the 2009 H1N1 influenza will 
        transmit the illness to approximately 8 to 12 percent of the 
        individual's coworkers. This workplace transmission presents a 
        serious threat to business operations, as many businesses do 
        not have contingency plans in place to address the possibility 
        of mass absences due to the spread of a pandemic illness or 
        other contagious illness.
            (3) Hundreds of schools have already been closed this year 
        because of the spread of influenza, and according to the 
        Centers for Disease Control and Prevention, early childhood 
        settings like child care facilities are at high risk for 
        transmission of illness due to their highly vulnerable 
        populations. These schools and settings are also workplaces for 
        many professionals who are at risk of infecting each other as 
        well as children.
            (4) The Centers for Disease Control and Prevention strongly 
        recommends that people with the 2009 H1N1 influenza or 
        influenza-like symptoms stay home for at least 24 hours after 
        their fevers end. Experts estimate that if workers followed the 
        recommendation of the Centers for Disease Control and 
        Prevention, the workers could reduce the number of people 
        infected by a pandemic of influenza by 15 to 34 percent.
            (5) Providing a minimum standard for paid sick days will 
        enable United States workers to follow this important 
        recommendation without putting their jobs or their paychecks at 
        risk.

SEC. 3. PURPOSES.

    The purposes of this Act are--
            (1) to minimize the spread of contagious illnesses in the 
        workplace and prevent disruptions to interstate commerce;
            (2) to ensure that all working Americans can address their 
        own health needs and the health needs of their children, 
        related to a contagious illness, by requiring employers to 
        provide up to 7 days of paid sick time to their employees;
            (3) to diminish public and private health care costs by 
        enabling employees to seek early and routine medical care for 
        themselves and their children, related to a contagious illness;
            (4) to provide paid sick time to employees due to closure 
        of a place of business due to a contagious illness or a need to 
        care for a child whose school or child care or early childhood 
        program has been closed due to a contagious illness; and
            (5) to accomplish the purposes described in paragraphs (1) 
        through (4) in a manner that is feasible for employers.

SEC. 4. DEFINITIONS.

    In this Act:
            (1) Child.--The term ``child'' means a child, as defined by 
        the Secretary in consultation with the Secretary of Health and 
        Human Services.
            (2) Contagious illness.--The term ``contagious illness'', 
        as defined by the Secretary of Labor in consultation with the 
        Secretary of Health and Human Services, includes influenza-like 
        illnesses such as an illness from the 2009 H1N1 virus.
            (3) Covered employee.--The term ``covered employee'' means 
        an individual who--
                    (A) has been employed for not less than 30 days by 
                the covered employer from whom paid sick time is 
                requested; and
                    (B) is--
                            (i) an employee, as defined in section 
                        701(f) of the Civil Rights Act of 1964 (42 
                        U.S.C. 2000e(f)), but including an individual 
                        employed by an Indian tribe;
                            (ii) a State employee described in section 
                        304(a) of the Government Employee Rights Act of 
                        1991 (42 U.S.C. 2000e-16c(a));
                            (iii) a covered employee, as defined in 
                        section 101 of the Congressional Accountability 
                        Act of 1995 (2 U.S.C. 1301), other than an 
                        applicant for employment;
                            (iv) a covered employee, as defined in 
                        section 411(c) of title 3, United States Code; 
                        or
                            (v) an employee or applicant to which 
                        section 717(a) of the Civil Rights Act of 1964 
                        (42 U.S.C. 2000e-16(a)) applies.
            (4) Covered employer.--
                    (A) In general.--The term ``covered employer'' 
                means a person who--
                            (i) is--
                                    (I) an employer (as defined in 
                                section 701(b) of the Civil Rights Act 
                                of 1964 (42 U.S.C. 2000e(b))), but 
                                including an Indian tribe;
                                    (II) an entity employing a State 
                                employee described in section 304(a) of 
                                the Government Employee Rights Act of 
                                1991;
                                    (III) an employing office, as 
                                defined in section 101 of the 
                                Congressional Accountability Act of 
                                1995;
                                    (IV) an employing office, as 
                                defined in section 411(c) of title 3, 
                                United States Code; or
                                    (V) an entity to which section 
                                717(a) of the Civil Rights Act of 1964 
                                applies;
                            (ii) who employs 15 or more employees for 
                        each working day during each of 20 or more 
                        calendar workweeks in the current or preceding 
                        calendar year; and
                            (iii) is engaged in commerce (including 
                        government) or in any industry or activity 
                        affecting commerce (including government).
            (5) Employment benefits.--The term ``employment benefits'' 
        means all benefits provided or made available to covered 
        employees by a covered employer, including group life 
        insurance, health insurance, disability insurance, sick leave, 
        annual leave, educational benefits, and pensions, regardless of 
        whether such benefits are provided by a practice or written 
        policy of a covered employer or through an ``employee benefit 
        plan'', as defined in section 3(3) of the Employee Retirement 
        Income Security Act of 1974 (29 U.S.C. 1002(3)).
            (6) Paid sick time.--The term ``paid sick time'' means an 
        increment of compensated leave that can be received by a 
        covered employee for use during an absence from employment for 
        any of the reasons described in paragraphs (1) through (3) of 
        section 5(b).
            (7) Secretary.--The term ``Secretary'' means the Secretary 
        of Labor.
            (8) Symptoms of a contagious illness.--The term ``symptoms 
        of a contagious illness'' means 1 or more symptoms, as 
        determined to be appropriate by the Secretary in consultation 
        with the Secretary of Health and Human Services, of a 
        contagious illness, including influenza-like illnesses such as 
        an illness from the 2009 H1N1 virus.

SEC. 5. PROVISION OF PAID SICK TIME.

    (a) Paid Sick Time.--
            (1) In general.--
                    (A) Full-time employees.--A covered employer shall 
                annually provide, to each covered employee employed by 
                the employer on a full-time basis (as defined by the 
                Secretary), not less than 7 days of paid sick time, 
                with employment benefits.
                    (B) Part-time employees.--The employer shall 
                annually provide, to each covered employee employed by 
                the employer on less than a full-time basis (as defined 
                by the Secretary), a number of days or hours of paid 
                sick time, with employment benefits. The number of days 
                or hours shall be determined under a formula specified 
                by the Secretary and designed to provide an approximate 
                pro rata share of the 7-day period described in 
                subparagraph (A), based on the hours worked by the 
                employee.
                    (C) Uses.--The paid sick time provided under this 
                section shall be used as described in subsection (b).
            (2) Covered employers with existing policies.--Any covered 
        employer with a paid leave policy who annually provides, to 
        each covered employee, 7 days of paid leave that may be used 
        for the same purposes and under the same conditions as the 
        purposes and conditions outlined in subsection (b), shall not 
        be required to provide additional paid sick time to the 
        employee under this section.
            (3) Construction.--Nothing in this section shall be 
        construed as requiring financial or other reimbursement to a 
        covered employee from a covered employer upon the employee's 
        termination, resignation, retirement, or other separation from 
        employment for paid sick time that has not been used.
            (4) Prohibition.--A covered employer may not require, as a 
        condition of providing paid sick time under this Act, that the 
        covered employee involved search for or find a replacement 
        worker to cover the hours during which the employee is using 
        paid sick time.
    (b) Uses.--Paid sick time provided under this section may be used 
by a covered employee for any of the following:
            (1)(A) An absence resulting from the medical condition of a 
        covered employee experiencing the symptoms of a contagious 
        illness, including the need to obtain medical diagnosis or 
        care, or an absence to obtain preventive care for the employee 
        for a contagious illness.
            (B) An absence due to a determination by a health authority 
        having jurisdiction or by a health care provider that the 
        covered employee's presence on the job would jeopardize the 
        health of others because of the employee's exposure to a 
        contagious illness.
            (2)(A) An absence for the purpose of caring for a child of 
        the covered employee who is experiencing symptoms of a 
        contagious illness, including the need to obtain medical 
        diagnosis or care, or an absence to obtain preventive care for 
        the child for a contagious illness.
            (B) An absence for the purpose of caring for a child of the 
        covered employee due to a determination by a health authority 
        having jurisdiction or by a health care provider that the 
        child's presence in the community would jeopardize the health 
        of others because of the child's exposure to a contagious 
        illness.
            (3) Closure of the covered employee's place of business due 
        to a contagious illness or a covered employee's need to care 
        for a child whose school or child care or early childhood 
        program has been closed due to a contagious illness.
    (c) Medical Certification Requirements.--
            (1) Request.--Paid sick time shall be provided upon the 
        oral or written request of a covered employee.
            (2) Certification.--The Secretary, and other authorities 
        who may issue regulations under section 12, may issue 
        regulations under that section regarding medical certification 
        requirements for a period of paid sick time under this Act. The 
        Secretary shall issue any such regulations after consultation 
        with the Secretary of Health and Human Services. A covered 
        employer may not require a covered employee to provide medical 
        certification inconsistent with the regulations, to receive 
        paid sick time under this section.

SEC. 6. POSTING REQUIREMENT.

    (a) In General.--Each covered employer--
            (1) shall post and keep posted a notice, to be prepared or 
        approved in accordance with procedures specified in regulations 
        prescribed under section 12, setting forth excerpts from, or 
        summaries of, the pertinent provisions of this Act; and
            (2) shall take other reasonable measures specified in the 
        regulations to inform covered employees of their rights under 
        those provisions.
    (b) Violation; Penalty.--Any covered employer who willfully 
violates the requirements of this section shall be subject to a civil 
fine in an amount not to exceed $100 for each separate offense.

SEC. 7. PROHIBITED ACTS.

    (a) Interference With Rights.--
            (1) Exercise of rights.--It shall be unlawful for any 
        covered employer to interfere with, restrain, or deny the 
        exercise of, or the attempt to exercise, any right provided 
        under this Act, including--
                    (A) discharging or discriminating against 
                (including retaliating against) any individual, 
                including a job applicant, for exercising, or 
                attempting to exercise, any right provided under this 
                Act;
                    (B) using the taking of paid sick time under this 
                Act as a negative factor in an employment action, such 
                as hiring, promotion, or a disciplinary action; or
                    (C) counting the paid sick time under a no-fault 
                attendance policy or any other absence control policy.
            (2) Discrimination.--It shall be unlawful for any covered 
        employer to discharge or in any other manner discriminate 
        against (including retaliating against) any individual, 
        including a job applicant, for opposing any practice made 
        unlawful by this Act.
    (b) Interference With Proceedings or Inquiries.--It shall be 
unlawful for any person to discharge or in any other manner 
discriminate against (including retaliating against) any individual, 
including a job applicant, because such individual--
            (1) has filed an action, or has instituted or caused to be 
        instituted any proceeding, under or related to this Act;
            (2) has given, or is about to give, any information in 
        connection with any inquiry or proceeding relating to any right 
        provided under this Act; or
            (3) has testified, or is about to testify, in any inquiry 
        or proceeding relating to any right provided under this Act.

SEC. 8. ENFORCEMENT AUTHORITY.

    (a) In General.--
            (1) Definition.--In this subsection:
                    (A) the term ``covered employee'' means a covered 
                employee described in clause (i) or (ii) of section 
                4(3)(B); and
                    (B) the term ``covered employer'' means a covered 
                employer described in subclause (I) or (II) of section 
                4(4)(A)(i).
            (2) Civil action by covered employees or individuals.--
                    (A) Right of action.--An action to recover the 
                damages or equitable relief prescribed in subparagraph 
                (B) may be maintained against any covered employer in 
                any Federal or State court of competent jurisdiction by 
                one or more covered employees or individuals or their 
                representative for and on behalf of--
                            (i) the covered employees or individuals; 
                        or
                            (ii) the covered employees or individuals 
                        and others similarly situated.
                    (B) Liability.--Any covered employer who violates 
                section 7 (including a violation relating to rights 
                provided under section 5) shall be liable to any 
                covered employee or individual affected for damages and 
                equitable relief, corresponding to that employee or 
                individual, described in subparagraphs (A) and (B) of 
                paragraph (1) of section 107(a) of the Family and 
                Medical Leave Act of 1993 (29 U.S.C. 2617(a)). In 
                applying those subparagraphs, a reference to a time 
                period shall be considered to be reference to 7 days. 
                Paragraph (3) of that section shall apply to the 
                action.
            (3) Action by the secretary.--Section 107(b) of that Act 
        (29 U.S.C. 2617(b)) shall apply to complaints of violations 
        described in paragraph (2)(B), with respect to employees, 
        individuals, and damages described in that paragraph.
            (4) Limitation.--
                    (A) In general.--An action may be brought under 
                paragraph (2), (3), or (5) not later than 1 year after 
                the date of the last event constituting the alleged 
                violation for which the action is brought.
                    (B) Commencement.--In determining when an action is 
                commenced under paragraph (2), (3), or (5) for the 
                purposes of this paragraph, it shall be considered to 
                be commenced on the date when the complaint is filed.
            (5) Action for injunction by secretary.--Section 107(d) of 
        that Act (29 U.S.C. 2617(d)) shall apply to violations 
        described in paragraph (2)(B), with respect to employees and 
        individuals described in that paragraph.
    (b) Employees Covered by Congressional Accountability Act of 
1995.--The powers, remedies, and procedures provided in the 
Congressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.) to the 
Board (as defined in section 101 of that Act (2 U.S.C. 1301)), or any 
person, alleging a violation of section 202(a)(1) of that Act (2 U.S.C. 
1312(a)(1)) shall be the powers, remedies, and procedures this Act 
provides to that Board, or any person, alleging an unlawful employment 
practice in violation of this Act against a covered employee described 
in section 4(3)(B)(iii).
    (c) Employees Covered by Chapter 5 of Title 3, United States 
Code.--The powers, remedies, and procedures provided in chapter 5 of 
title 3, United States Code, to the President, the Merit Systems 
Protection Board, or any person, alleging a violation of section 
412(a)(1) of that title, shall be the powers, remedies, and procedures 
this Act provides to the President, that Board, or any person, 
respectively, alleging an unlawful employment practice in violation of 
this Act against a covered employee described in section 4(3)(B)(iv).
    (d) Employees Covered by Section 717 of the Civil Rights Act of 
1964.--The powers, remedies, and procedures provided in title 5, United 
States Code, to an employing agency, provided in chapter 12 of that 
title to the Merit Systems Protection Board, or provided under that 
title to any person, alleging a violation of chapter 63 of that title, 
shall be the powers, remedies, and procedures this Act provides to that 
agency, that Board, or any person, respectively, alleging an unlawful 
employment practice in violation of this Act against a covered employee 
described in section 4(3)(B)(v).
    (e) Remedies for State Employees.--
            (1) Waiver of sovereign immunity.--A State's receipt or use 
        of Federal financial assistance for any program or activity of 
        a State shall constitute a waiver of sovereign immunity, under 
        the 11th amendment to the Constitution or otherwise, to a suit 
        brought by a covered employee of that program or activity under 
        this Act for equitable, legal, or other relief authorized under 
        this Act.
            (2) Official capacity.--An official of a State may be sued 
        in the official capacity of the official by any covered 
        employee who has complied with the procedures under subsection 
        (a)(2), for injunctive relief that is authorized under this 
        Act. In such a suit the court may award to the prevailing party 
        those costs authorized by section 722 of the Revised Statutes 
        (42 U.S.C. 1988).
            (3) Applicability.--With respect to a particular program or 
        activity, paragraph (1) applies to conduct occurring on or 
        after the day, after the date of enactment of this Act, on 
        which a State first receives or uses Federal financial 
        assistance for that program or activity.
            (4) Definition of program or activity.--In this subsection, 
        the term ``program or activity'' has the meaning given the term 
        in section 606 of the Civil Rights Act of 1964 (42 U.S.C. 
        2000d-4a).

SEC. 9. EFFECT ON OTHER LAWS.

    (a) Family and Medical Leave Act of 1993.--Nothing in this Act 
shall be construed to modify or affect the Family and Medical Leave Act 
of 1993 (29 U.S.C. 2601 et seq.).
    (b) State and Local Laws.--Nothing in this Act shall be construed 
to supersede (including preempting) any provision of any State or local 
law that provides greater paid sick time or leave rights (including 
greater paid sick time or leave, or greater coverage of those eligible 
for paid sick time or leave) than the rights established under this 
Act.

SEC. 10. EFFECT ON EXISTING EMPLOYMENT BENEFITS.

    (a) More Protective.--Nothing in this Act shall be construed to 
diminish the obligation of a covered employer to comply with any 
contract, collective bargaining agreement, or any employment benefit 
program or plan that provides greater paid sick leave or other leave 
rights to covered employees or individuals than the rights established 
under this Act.
    (b) Less Protective.--The rights established for covered employees 
under this Act shall not be diminished by any contract, collective 
bargaining agreement, or any employment benefit program or plan.

SEC. 11. ENCOURAGEMENT OF MORE GENEROUS LEAVE POLICIES.

    Nothing in this Act shall be construed to discourage covered 
employers from adopting or retaining leave policies more generous than 
policies that comply with the requirements of this Act.

SEC. 12. REGULATIONS.

    (a) In General.--Not later than 15 days after the date of enactment 
of this Act, the Secretary shall prescribe such interim final 
regulations as are necessary to carry out this Act with respect to 
covered employees described in clause (i) or (ii) of section 4(3)(B) 
and other individuals affected by covered employers described in 
subclause (I) or (II) of section 4(4)(A)(i).
    (b) Employees Covered by Congressional Accountability Act of 
1995.--
            (1) Authority.--Not later than 30 days after the date of 
        enactment of this Act, each congressional regulating authority 
        shall prescribe such interim final regulations as are necessary 
        to carry out this Act with respect to covered employees 
        described in section 4(3)(B)(iii) and under the regulating 
        authority's jurisdiction and other individuals affected by 
        covered employers described in section 4(4)(A)(i)(III) and 
        under the regulating authority's jurisdiction.
            (2) Agency regulations.--The regulations prescribed under 
        paragraph (1) shall be the same as substantive regulations 
        promulgated by the Secretary to carry out this Act except 
        insofar as the congressional regulating authority may 
        determine, for good cause shown and stated together with the 
        regulations prescribed under paragraph (1), that a modification 
        of such regulations would be more effective for the 
        implementation of the rights and protections involved under 
        this section.
            (3) Congressional regulating authority.--The term 
        ``congressional regulating authority'' means--
                    (A) the Committee on Rules of the House of 
                Representatives, with respect to a covered employee 
                described in paragraph (7) of section 101 of the 
                Congressional Accountability Act of 1995 (2 U.S.C. 
                1301) and the covered employer of that employee;
                    (B) the Committee on Rules of the Senate, with 
                respect to a covered employee described in paragraph 
                (8) of that section and the covered employer of that 
                employee; and
                    (C) the head of a covered employer described in 
                paragraph (9)(D) of that section, with respect to a 
                corresponding covered employee described in any of 
                subparagraphs (C) through (I) of paragraph (3) of that 
                section and the covered employer.
    (c) Employees Covered by Chapter 5 of Title 3, United States 
Code.--
            (1) Authority.--Not later than 30 days after the date of 
        enactment of this Act, the President (or the designee of the 
        President) shall prescribe such interim final regulations as 
        are necessary to carry out this Act with respect to covered 
        employees described in section 4(3)(B)(iv) and other 
        individuals affected by covered employers described in section 
        4(4)(A)(i)(IV).
            (2) Agency regulations.--The regulations prescribed under 
        paragraph (1) shall be the same as substantive regulations 
        promulgated by the Secretary to carry out this Act except 
        insofar as the President (or designee) may determine, for good 
        cause shown and stated together with the regulations prescribed 
        under paragraph (1), that a modification of such regulations 
        would be more effective for the implementation of the rights 
        and protections involved under this section.
    (d) Employees Covered by Section 717 of the Civil Rights Act of 
1964.--
            (1) Authority.--Except as provided in paragraph (2), not 
        later than 30 days after the date of enactment of this Act, the 
        Director of the Office of Personnel Management shall prescribe 
        such interim final regulations as are necessary to carry out 
        this Act with respect to covered employees described in section 
        4(3)(B)(v) and other individuals affected by covered employers 
        described in section 4(4)(A)(i)(V).
            (2) Government accountability office; library of congress; 
        government printing office.--The Comptroller General of the 
        United States, the Librarian of Congress, and the Public 
        Printer shall prescribe the interim final regulations with 
        respect to covered employees of the Government Accountability 
        Office, the Library of Congress, and the Government Printing 
        Office, respectively and other individuals affected by the 
        Comptroller General of the United States, the Librarian of 
        Congress, and the Public Printer, respectively.
            (3) Agency regulations.--The regulations prescribed under 
        paragraph (1) or (2) shall be the same as substantive 
        regulations promulgated by the Secretary to carry out this Act 
        except insofar as the Director, Comptroller General of the 
        United States, the Librarian of Congress, or the Public Printer 
        may determine, for good cause shown and stated together with 
        the regulations prescribed under paragraph (1) or (2), that a 
        modification of such regulations would be more effective for 
        the implementation of the rights and protections involved under 
        this section.

SEC. 13. EFFECTIVE DATES.

    (a) Effective Date.--This Act (other than section 12) shall take 
effect--
            (1) with respect to covered employees described in clause 
        (i) or (ii) of section 4(3)(B), and their covered employers, 15 
        days after the date of enactment of this Act; and
            (2) except as provided in paragraph (1), 30 days after the 
        date of enactment of this Act.
    (b) Termination.--This Act shall terminate 2 years after the date 
of enactment of this Act.
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