    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

      PROTECTING EMPLOYEES, EMPLOYERS AND THE PUBLIC: H1N1 AND SICK LEAVE
                                    POLICIES

    =======================================================================

                                    HEARING

                                   before the

                                  COMMITTEE ON
                              EDUCATION AND LABOR

                         U.S. House of Representatives

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

               HEARING HELD IN WASHINGTON, DC, NOVEMBER 17, 2009

                                   __________

                               Serial No. 111-40

                                   __________

          Printed for the use of the Committee on Education and Labor

                           Available on the Internet:
          http://www.gpoaccess.gov/congress/house/education/index.html

                                      ______

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                        COMMITTEE ON EDUCATION AND LABOR

                      GEORGE MILLER, California, Chairman

    Dale E. Kildee, Michigan, Vice       John Kline, Minnesota,
        Chairman                           Senior Republican Member
    Donald M. Payne, New Jersey          Thomas E. Petri, Wisconsin
    Robert E. Andrews, New Jersey        Howard P. ``Buck'' McKeon,
    Robert C. ``Bobby'' Scott, Virginia      California
    Lynn C. Woolsey, California          Peter Hoekstra, Michigan
    Ruben Hinojosa, Texas                Michael N. Castle, Delaware
    Carolyn McCarthy, New York           Mark E. Souder, Indiana
    John F. Tierney, Massachusetts       Vernon J. Ehlers, Michigan
    Dennis J. Kucinich, Ohio             Judy Biggert, Illinois
    David Wu, Oregon                     Todd Russell Platts, Pennsylvania
    Rush D. Holt, New Jersey             Joe Wilson, South Carolina
    Susan A. Davis, California           Cathy McMorris Rodgers, Washington
    Raul M. Grijalva, Arizona            Tom Price, Georgia
    Timothy H. Bishop, New York          Rob Bishop, Utah
    Joe Sestak, Pennsylvania             Brett Guthrie, Kentucky
    David Loebsack, Iowa                 Bill Cassidy, Louisiana
    Mazie Hirono, Hawaii                 Tom McClintock, California
    Jason Altmire, Pennsylvania          Duncan Hunter, California
    Phil Hare, Illinois                  David P. Roe, Tennessee
    Yvette D. Clarke, New York           Glenn Thompson, Pennsylvania
    Joe Courtney, Connecticut
    Carol Shea-Porter, New Hampshire
    Marcia L. Fudge, Ohio
    Jared Polis, Colorado
    Paul Tonko, New York
    Pedro R. Pierluisi, Puerto Rico
    Gregorio Kilili Camacho Sablan,
        Northern Mariana Islands
    Dina Titus, Nevada
    Judy Chu, California

                         Mark Zuckerman, Staff Director
                    Barrett Karr, Republican Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on November 17, 2009................................     1

    Statement of Members:
        Kline, Hon. John, Senior Republican Member, Committee on
          Education and Labor........................................     4
            Prepared statement of....................................     5
            Additional submissions:
                Letter dated November 17, 2009, from various
                  associations.......................................    64
                Letter dated November 17, 2009, from various
                  organizations, contractors, subcontractors,
                  material suppliers and employees...................    66
                Letter dated December 1, 2009, from Capital
                  Associated Industries, Inc.........................    68
        Miller, Hon. George, Chairman, Committee on Education and
          Labor......................................................     1
            Prepared statement of....................................     3
        Thompson, Hon. Glenn, a Representative in Congress from the
          State of Pennsylvania, letter dated November 16, 2009, from
          the House Committee on Small Business......................    37

    Statement of Witnesses:
        Benjamin, Georges C., M.D., FACP, FACEP (E), executive
          director, American Public Health Association...............    13
            Prepared statement of....................................    15
        Clarke, A. Bruce, J.D., president and CEO, Capital Associated
          Industries, Inc............................................    17
            Prepared statement of....................................    18
        Ness, Debra L., president, National Partnership for Women and
          Families...................................................    22
            Prepared statement of....................................    23
        Schuchat, RADM Anne, M.D., Assistant Surgeon General;
          Director, National Center for Immunization and Respiratory
          Diseases (NCIRD), Centers for Disease Control and
          Prevention, U.S. Department of Health and Human Services...     7
            Prepared statement of....................................     9

                      PROTECTING EMPLOYEES, EMPLOYERS AND
                    THE PUBLIC: H1N1 AND SICK LEAVE POLICIES

                                  ----------

                           Tuesday, November 17, 2009

                         U.S. House of Representatives

                        Committee on Education and Labor

                                 Washington, DC

                                  ----------

        The committee met, pursuant to call, at 10:00 a.m., in room
    2175, Rayburn House Office Building, Hon. George Miller
    [chairman of the committee] presiding.
        Present: Representatives Miller, Kildee, Payne, Andrews,
    Scott, Woolsey, Hinojosa, McCarthy, Tierney, Wu, Holt, Davis,
    Bishop of New York, Loebsack, Hirono, Altmire, Hare, Clarke,
    Courtney, Shea-Porter, Fudge, Polis, Tonko, Titus, Chu, Kline,
    Petri, McKeon, Biggert, Wilson, McMorris Rodgers, Guthrie, Roe,
    and Thompson.
        Staff present: Aaron Albright, Press Secretary; Tylease
    Alli, Hearing Clerk; Tico Almeida, Labor Counsel (Immigration
    and International Trade); Jody Calemine, General Counsel; Lynn
    Dondis, Labor Counsel, Subcommittee on Workforce Protections;
    David Hartzler, Systems Administrator; Broderick Johnson, Staff
    Assistant; Gordon Lafer, Senior Labor Policy Advisor; Richard
    Miller, Senior Labor Policy Advisor; Alex Nock, Deputy Staff
    Director; Joe Novotny, Chief Clerk; Rachel Racusen,
    Communications Director; Meredith Regine, Junior Legislative
    Associate, Labor; James Schroll, Junior Legislative Associate,
    Labor; Dray Thorne, Senior Systems Administrator; Michele
    Varnhagen, Labor Policy Director; Mark Zuckerman, Staff
    Director; Andrew Blasko, Minority Speech Writer and
    Communications Advisor; Kirk Boyle, Minority General Counsel;
    Casey Buboltz, Minority Coalitions and Member Services
    Coordinator; Ed Gilroy, Minority Director of Workforce Policy;
    Rob Gregg, Minority Senior Legislative Assistant; Ryan Murphy,
    Minority Press Secretary; Jim Paretti, Minority Workforce
    Policy Counsel; Molly McLaughlin Salmi, Minority Deputy
    Director of Workforce Policy; and Linda Stevens, Minority Chief
    Clerk/Assistant to the General Counsel.
        Chairman Miller [presiding]. The committee will come to
    order to conduct a hearing on ``Protecting employees and
    employers and the public: H1N1 and sick leave policies.'' I
    would like to welcome everyone this morning on a very important
    topic.
        We are meeting today in the midst of a global pandemic. The
    H1H1 virus is sweeping our country, closing hundreds of
    schools, idling thousands of workers, and affecting millions of
    Americans. The H1N1 flu virus is now officially widespread in
    at least 48 states, and the president has designated the virus
    a public health emergency.
        The Centers on Disease Control reports that the flu spread
    is very unusual this early in the season, and deaths among
    children and young adults are higher than expected. The CDC
    estimates that 22 million Americans have already become ill in
    the last 6 months with H1N1, and 3,900 have died. A recent
    study predicted that 63 percent of Americans will be infected
    by the virus by the end of December.
        Fortunately, public health officials did have an early
    warning this spring on the potential of a widespread outbreak.
    The Obama administration and public health officials took
    immediate steps to develop policies to slow the spread of H1N1
    flu and minimize the disruptions, but all of the planning and
    preparations cannot fully address the uncertainties surrounding
    the new highly contagious virus.
        While I applaud the quick identification and development of
    the vaccine, the delays of producing and delivering the vaccine
    to targeted populations have concerned millions of Americans. I
    am encouraged with the report that private vaccine
    manufacturers have worked out the production issues, and we
    seem to be back on track to getting the needed vaccine to the
    American people. The H1N1 vaccine is the new viral tactic to
    slow the infection rate.
        While we fix the supply issues, the public health officials
    emphasize that there are additional ways to slow the spread of
    this dangerous virus. The CDC has issued guidance and
    recognizes the role employers and workers play in slowing the
    spread of the disease. According to the CDC, an individual who
    comes to work with H1N1 will infect about 10 percent of his or
    her co-workers.
        They recommend that any worker with influenza-type
    illnesses stay home and that employers should allow workers to
    stay home without fear of any reprisals and without fear of
    losing their jobs. But the recommendation is easier made than
    followed, because for more than 50 million workers without paid
    sick leave, taking a day off from work means a pay cut or
    worse. Workers fear that they will be punished for taking time
    off either by losing pay because they do not have paid sick
    days or even by being fired.
        Employees of the food service, hospitality industry, school
    and health care fields are among those who cannot afford to
    stay home when they are sick. Because these employees have
    direct contact with the public, the consequences of coming to
    work sick are not only damaging to their health, but could
    damage the public health as well.
        Let us face one simple fact. When you are struggling to
    make ends meet, you are going to do everything possible not to
    miss a day's pay. The lack of paid sick leave encourages
    workers who may have H1N1 to hide their symptoms and come to
    work sick, spreading the infection to co-workers, customers and
    the public. It is not good for our nation's public health or
    for businesses.
        The National Partnership of Women and Families found that
    sick employees who go to work cost the economy about $180
    billion in lost productivity. This is a significant loss of
    productivity for the American economy compared to the minimal
    cost of providing a few paid sick days a year. The Bureau Of
    Labor Statistics says the cost of paid leave borne by employers
    for lower wage workers only accounts for 4.2 percent of their
    total compensation.
        Despite these minimal costs, current federal law does not
    mandate that employers provide paid sick leave to their
    workers. This is why members of Congress have been pushing for
    universal paid leave policies that will ensure workers at all
    income levels are able to take advantage of paid leave
    policies. I strongly support these efforts.
        However, the current H1N1 pandemic demanded an emergency
    response. Two weeks ago Congresswoman Woolsey and I introduced
    temporary and emergency legislation to help workers and
    employers deal with the spread of the H1N1 flu virus. The
    Emergency Influenza Containment Act will guarantee sick workers
    5 days of paid leave if their employer directs or advises them
    to stay home.
        This temporary legislation will slow the advance of H1N1
    being spread through the workplace and encourage open
    communication between employees and their employers on sick
    leave policies. This emergency measure will not and should not
    supplant the need for comprehensive paid family leave policies,
    but I believe that it will be a circuit breaker needed to get
    this virus under control while protecting workers, employers
    and the public.
        I will continue to work with other members, such as
    Congresswoman Rosa DeLauro, in their efforts to win permanent
    reform in this area.
        But I would like to thank the witnesses for joining us
    today on this important hearing and look forward to all of your
    testimony. And with that, I would like to recognize the senior
    Republican member of our committee, Mr. Kline, for an opening
    statement.
        [The statement of Mr. Miller follows:]

       Prepared Statement of Hon. George Miller, Chairman, Committee on
                              Education and Labor

        I would like to welcome everyone this morning on a very important
    topic.
        We are meeting today in the midst of a global pandemic. The H1N1
    virus is sweeping our country--closing hundreds of schools, idling
    thousands of workers, and infecting many millions of Americans.
        The H1N1 flu virus is now officially ``widespread'' in at least 48
    states and the President has designated the virus a public health
    emergency.
        The Centers for Disease Control reports that the flu's spread is
    very unusual this early in the season and deaths among children and
    young adults are higher than expected. The CDC estimates that 22
    million Americans have already become ill in the last six months with
    H1N1 and 3,900 have died.
        A recent study predicted that 63 percent of Americans will be
    infected with the virus by the end of December.
        Fortunately, public health officials did have an early warning this
    spring of the potential of a widespread outbreak. The Obama
    administration and public health officials took immediate steps to
    develop policies to slow the spread of the H1N1 flu and minimize
    disruptions.
        But all the planning and preparations cannot fully address the
    uncertainties surrounding a new, highly contagious virus. While I
    applaud the quick identification and development of a vaccine, the
    delays of producing and delivering the vaccine to target populations
    have concerned millions of Americans. I am encouraged reports that
    private vaccine manufacturers have worked out production issues and we
    seem to be back on track to getting the needed vaccine to the American
    people.
        The H1N1 vaccine is one vital tactic to slow the infection rate.
    While we fix the supply issues, public health officials emphasize that
    there are additional ways to slow the spread of this dangerous virus.
        The CDC has issued guidance that recognizes the role employers and
    workers play in slowing the spread of disease. According to the CDC, an
    individual who comes to work with H1N1 will infect about 10 percent of
    his or her co-workers. They recommend that any worker with an
    influenza-type illness stay home, and that employers should allow
    workers to stay home ``without fear of any reprisals'' and ``without
    fear of losing their jobs.''
        But, that recommendation is easier made than followed.
        Because for the more than 50 million workers without paid sick
    leave, taking a day off from work means a pay cut or worse. Workers
    fear they will be punished for taking time off, either by losing pay
    because they do not have paid sick days or even fired. Employees in the
    food-service and hospitality industry, schools and health care fields
    are among those who cannot afford to stay home when they're sick.
        Because these employees have direct contact with the public, the
    consequences of coming into work sick are not only damaging to their
    health, but could be damaging for the public's health as well.
        Let's face some simple facts: when you're struggling to make ends
    meet you're going to do everything possible to not miss a day's pay.
    The lack of paid sick leave encourages workers who may have H1N1 to
    hide their symptoms and come to work sick--spreading infection to
    coworkers, customers and the public.
        This isn't good for our nation's public health or for businesses.
        The National Partnership for Women and Families found that sick
    employees who still go to work cost the economy $180 billion in lost
    productivity. This is a significant loss in productivity for the
    American economy compared to the minimal cost of providing a few paid-
    sick days a year.
        The Bureau of Labor Statistics says that the costs of paid leave
    borne by employers for lower-wage workers only accounts for 4.2 percent
    of their total compensation. Despite these minimal costs, current
    federal law does not mandate that employers provide paid leave to their
    workers.
        This is why members of Congress have been pushing for universal
    paid leave policies that will ensure workers of at all income levels
    are able to take advantage of paid leave policies.
        I strongly support these efforts.
        However, the current H1N1 pandemic has demanded an emergency
    response.
        Two weeks ago, Congresswoman Woolsey and I introduced temporary and
    emergency legislation to help workers and employers deal with the
    spread of the H1N1 flu virus. The Emergency Influenza Containment Act
    will guarantee sick workers five days of paid sick leave if their
    employer directs or advises them to stay home.
        This temporary legislation will slow the advance of H1N1 being
    spread through the workplace and encourage open communications between
    employees and their employers on sick leave policies.
        This emergency measure will not, and should not, supplant the need
    for comprehensive paid family leave policies. But I believe it will be
    a circuit breaker needed to get this virus under control, while
    protecting workers, employers and the public.
        I will continue to work with other members such as Congresswoman
    DeLauro in their efforts to win permanent reform in this area.
        I would like to thank the witnesses for joining us today for this
    important hearing and forward to your testimony.
                                     ______

        Mr. Kline. Thank you, Mr. Chairman.
        Good morning to all. I absolutely concur with the chairman
    that our topic today is indeed a timely one, with employers,
    workers and their families facing the uncertainty of a
    widespread influenza outbreak was wide-ranging effects.
        Unfortunately, the uncertainty I mentioned is pervasive.
    Even the scope of the outbreak is apparently unknown. The
    Washington Post reported on Friday that, ``Total H1N1 cases in
    the United States range from 14 million to 44 million and total
    deaths range from 2,500 to 6,100.''
        Adding to the confusion, the administration's early
    estimates of vaccine availability were significantly
    overstated, resulting in long lines and shortages while vaccine
    production ramped up. Nonetheless, Americans are coping with
    the situation as well as they can. From schools and workplaces
    to shopping centers and transit systems, we are seeing the
    implementation of simple safeguards, such as using hand
    sanitizer and limiting person-to-person contact in an effort to
    reduce exposure.
        We are here this morning to talk specifically about
    workplace policies designed to limit the spread of H1N1,
    including the availability of sick leave for workers who fall
    ill. To understand these issues, we need a bit of context.
        We should know that in 2008 nearly all full-time employees
    in the United States, fully 93 percent, had access to paid sick
    leave. The majority of part-time workers had paid sick leave as
    well, although 82 percent of these workers are employed part-
    time voluntarily in order to have the flexibility to manage
    work and family obligations.
        We all know federal mandates are particularly onerous for
    small businesses, so it is important to look specifically at
    this category of employers as we consider new federal policies.
    The data tell us that 76 percent of all workers in small
    businesses with fewer than 50 employees have paid illness
    leave, while other employers have informal plans--for example,
    granting paid time off for health-related concerns on a case-
    by-case basis.
        We must also be mindful of the existing Family Medical
    Leave Act, which provides unpaid leave for medical reasons and
    carries a host of notification and certification procedures of
    its own. With so many workers already having access to a
    variety of sick leave options, we need to look very carefully
    at proposals to add a new layer of federal leave mandates.
        A number of questions remain unanswered. How would these
    paid leave requirements interact with existing leave policies?
    What kind of notification or certification would be required?
    And is it a wise idea to put employers in the business of
    diagnosing medical conditions and deciding when workers should
    be sent home and when they are well enough to return to work?
        The H1N1 outbreak is a serious concern, and employers
    across the country are taking steps already to minimize
    infection and prevent the spread of the flu in their
    workplaces. This is clearly new and unknown territory, and we
    must tread very carefully as we attempt to minimize the spread
    of H1N1 while avoiding the creation of confusing, duplicative
    and costly new mandates that could harm the very workers we are
    trying to protect.
        I look forward to hearing from our witnesses and gaining a
    better understanding of the existing policies and practices and
    how they are being applied to the current influenza outbreak.
        And with that, Mr. Chairman, I thank you and yield back.
        [The statement of Mr. Kline follows:]

       Prepared Statement of Hon. John Kline, Senior Republican Member,
                        Committee on Education and Labor

        Good morning Chairman Miller. Our topic today is a timely one, with
    employers, workers, and their families facing the uncertainty of a
    widespread influenza outbreak with wide ranging effects.
        Unfortunately, the uncertainty I mentioned is pervasive. Even the
    scope of the outbreak is unknown. The Washington Post reported on
    Friday that ``total H1N1 cases in the United States range from 14
    million to 34 million, and total deaths range from 2,500 to 6,100.''
        Adding to the confusion, the Administration's early estimates of
    vaccine availability were significantly overstated, resulting in long
    lines and shortages while vaccine production ramped up.
        Nonetheless, Americans are coping with the situation as well as
    they can. From schools and workplaces to shopping centers and transit
    systems, we are seeing the implementation of simple safeguards such as
    using hand sanitizer and limiting person-to-person contact in an effort
    to reduce exposure.
        We're here this morning to talk specifically about workplace
    policies designed to limit the spread of H1N1, including the
    availability of sick leave for workers who fall ill.
        To understand these issues, we need a bit of context. We should
    know that in 2008, nearly all full-time employees in the United
    States--fully 93 percent--had access to paid sick leave. A majority of
    part-time workers have paid sick leave as well, although 82 percent of
    these workers are employed part-time voluntarily in order to have the
    flexibility to manage work and family obligations.
        We all know federal mandates are particularly onerous for small
    businesses, so it's important to look specifically at this category of
    employers as we consider new federal policies. The data tell us that 76
    percent of all workers in small businesses with fewer than 50 employees
    have paid illness leave, while other employers have informal plans--for
    example, granting paid time off for health-related concerns on a case-
    by-case basis.
        We must also be mindful of the existing Family and Medical Leave
    Act, which provides unpaid leave for medical reasons--and carries a
    host of notification and certification procedures of its own.
        With so many workers already having access to a variety of sick
    leave options, we need to look very carefully at proposals to add a new
    layer of federal leave mandates.
        A number of questions remain unanswered. How would these paid leave
    requirements interact with existing leave policies? What kind of
    notification and certification would be required? And is it a wise idea
    to put employers in the business of diagnosing medical conditions and
    deciding when workers should be sent home, and when they're well enough
    to return to work?
        The H1N1 outbreak is a serious concern, and employers across the
    country are taking steps already to minimize infection and prevent the
    spread of the flu in their workplaces. This is clearly new and unknown
    territory, and we must tread very carefully as we attempt to minimize
    the spread of H1N1 while avoiding the creation of confusing,
    duplicative, and costly new mandates that could harm the very workers
    we're trying to protect.
        I look forward to hearing from our witnesses and gaining a better
    understanding of the existing policies and practices, and how they're
    being applied to the current influenza outbreak. Thank you, and I yield
    back.
                                     ______

        Chairman Miller. Thank you very much.
        And with that, I would like to introduce our panel and say
    that pursuant to committee rule 7C, all members may submit an
    opening statement in writing, which will be made part of the
    permanent record.
        Our first witness will be Dr. Anne Schuchat, who currently
    serves as the assistant surgeon general of the United States
    Public Health Service and director of the National Center for
    Immunization and Respiratory Diseases at the Center for Disease
    Control and Prevention. In addition, Dr. Schuchat is also the
    chief health officer for the CDC's H1N1 response. Dr. Schuchat
    has spent more than 20 years at CDC, working on immunization,
    respiratory and infectious diseases.
        Dr. Georges Benjamin has served as executive director of
    the American Public Health Association, the nation's oldest and
    largest organization of public health professionals since
    December of 2002. Prior to this position, Dr. Benjamin served
    as secretary of many divisions of the Maryland Department of
    Health, as well as also serving as acting commissioner of
    public health for the District of Columbia. Dr. Benjamin is
    also a member of the Institute of Medicine at the National
    Academies of Science.
        Bruce Clarke is the president and CEO of Capital Associated
    Industries and also serves as chairman of the Employment and
    Labor Policy Subcommittee of the National Association of
    Manufacturers. Capital Associated Industries is a nonprofit
    employers association, which provides 1,200 member companies
    with executive, management and human resource information and
    services.
        Debra Ness is the president of the National Partnership for
    Women and Families, one of the country's leading organizations
    promoting policies to help women and men meet the dual demands
    of work and family. Prior to assuming her current role, Ms.
    Ness served as the executive vice president of the National
    Partnership for 13 years. Ms. Ness is also a national leader in
    efforts to improve health care, including serving on the
    National Quality Forum established by the president's Advisory
    Commission on Consumer Protection and Quality in the Health
    Care Industry, with the mission of developing national
    strategies for health care quality measurement and reporting.
        Welcome to all of you. Thank you for taking your time to
    share your knowledge and expertise with the committee.
        And, Dr. Schuchat, we will begin with you. You have been
    here before, but a green light will go on. That will tell you
    that you have 5 minutes for your testimony. An orange light
    will come on to suggest you might want to start wrapping up
    with about a minute left. And then you wrap up when the red
    light is on in the manner most coherent and convenient to you.
    So, welcome.

     STATEMENT OF DR. ANNE SCHUCHAT, DIRECTOR, NATIONAL CENTER FOR
     IMMUNIZATION AND RESPIRATORY DISEASES, CHIEF HEALTH OFFICER,
       H1N1 RESPONSE, CENTERS FOR DISEASE CONTROL AND PREVENTION

        Dr. Schuchat. Thank you, Chairman Miller, Ranking Member
    Kline, and other members of the committee. It is really a
    pleasure to come back to update the committee on the
    administration's comprehensive response to the H1N1 virus and
    discuss the impact that the pandemic is having on work, school
    and society.
        We have estimated that the first 6 months of this pandemic,
    the virus has led 22 million people to become ill, 98,000
    people to be hospitalized, and about 4,000 people to die. The
    virus is spreading widely in 46 states. It is beginning to
    decrease in many places, but it is still way higher than
    baseline for this time of year.
        So far, there has been no change in the illness pattern,
    the age pattern or underlying conditions. Ninety percent of
    people who have died from this virus are under 65 years of age,
    a complete opposite with what we see for seasonal flu. Two-
    thirds of the children who have died have underlying
    conditions--asthma, neurologic problems and so forth, and so we
    know that pregnant women and adults with chronic medical
    conditions are at higher risk than others.
        So far, there has been no change in the virus. This is good
    news, because it means it hasn't become more virulent. It is
    also good news, because the vaccines that we are making
    perfectly match the strain and should have good effectiveness.
        But influenza, including the H1N1 virus, is unpredictable,
    and we do not know the trajectory that the virus will have in
    the weeks and months ahead. We know that previous pandemics
    have had multiple waves, and we are mindful the disease may
    continue to spread and that we may have waves of this disease
    through the next several months. The typical flu season goes
    from December to May, and we are mindful that we have a long
    road ahead.
        CDC's role I am going to go through in a little bit of
    detail, but first I want to thank Congress for the incredible
    support that we have received to strengthen the preparedness of
    the country. It really is a little terrifying to think of where
    we would be if we had not been investing in the past several
    years in improved preparedness at the state and local level,
    the federal level, and the global level.
        CDC responded promptly last fall, identifying and
    characterizing this new virus, developing a strain to form a
    candidate for vaccine development, carrying not epidemiologic
    and laboratory surveillance in the U.S. and around the world.
    Our response has been comprehensive and aggressive, using
    science as the base for our approaches.
        We rapidly deployed assets, including life-saving
    antivirals and a significant portion of respiratory protection
    from our strategic national stockpile. We prepared and shaped
    laboratory kits to states around the country and to over 150
    countries. We sent field teams to assist at home and abroad.
        We have issued guidance for schools, businesses and so
    forth, reminding them about how important sick leave is. We
    have issued guidance and updated that guidance for health care
    workers, mentioning respiratory protection and the steps that
    could be taken to extend the supply of respiratory protection.
        We have incorporated new antiviral medicines that can be
    delivered intravenously with the help of the FDA. We have
    focused on communication, and we have focused on vaccination.
    We are in the midst of a large national voluntary vaccination
    effort that is unprecedented in its scope.
        We, like others, are disappointed in the vaccine production
    and has been to some extent the victim of a slow-growing virus,
    but production is accelerating, and substantial amounts are now
    becoming available. Today 48.5 million doses of H1N1 vaccine
    has become available for the states to order. They have
    prioritized groups at highest risk to receive the vaccine
    during this phase where it is in limited supply, and we are
    supporting states and local authorities to make the best
    decisions about how to reach the priority groups with the
    scarce vaccine.
        We think it is very important to use vaccine as soon as it
    is available as effectively and efficiently as possible. We are
    focusing on safety and not taking any shortcuts either in
    vaccine release or in monitoring safety as the vaccine is in
    larger scale use, working hard with our partners in HHS and
    beyond to focus on the state and local infrastructure that is
    so vital in our response.
        Today's hearing highlights the human and economic impact
    that influenza has, and in general illness really can cause
    work loss and threaten business continuity. Our guidance is for
    individuals to stay home when they are sick. Twenty-four hours
    after a fever is gone is what we have recommended, based on
    updated evidence.
        We know that we have issued guidance to businesses to be
    flexible in sick leave and make it easy for workers to do the
    right thing. It is important to have the right policies in
    place and have careful planning for contingencies at
    businesses. Our goal in public health is to make it easy for
    employees to make the right choices to stay home, avoid
    infecting co-workers, and recover.
        I look forward to regular communications with the public
    and Congress and to answering the questions that you have.
        [The statement of Dr. Schuchat follows:]

       Prepared Statement of RADM Anne Schuchat, M.D., Assistant Surgeon
      General; Director, National Center for Immunization and Respiratory
      Diseases (NCIRD), Centers for Disease Control and Prevention, U.S.
                    Department of Health and Human Services

        Chairman Miller, Ranking Member Kline, members of the Committee,
    thank you for this opportunity to update you on the public health
    challenges of 2009 H1N1 influenza.
        The Centers for Disease Control and Prevention (CDC) and our
    colleagues throughout the Department of Health and Human Services (HHS)
    are working in close partnership with many parts of the federal
    government, as well as with states and localities, under a national
    preparedness and response framework for action that builds on the
    efforts and lessons learned from the past few months, this previous
    spring and influenza preparedness trainings conducted during the last
    several years. Working together with governors, mayors, tribal leaders,
    state and local health departments, the medical community and our
    private sector partners, we have been monitoring the spread of H1N1 and
    facilitating prevention and treatment, including implementing a
    vaccination program. CDC also has deployed staff, both domestically and
    globally, to assist in epidemiologic investigation of the virus and
    support state, local and territorial health departments with the H1N1
    mass vaccination campaign.
        Influenza is probably the least predictable of all infectious
    diseases, and the 2009 H1N1 pandemic has presented considerable
    challenges--in particular the delay in production of a vaccine due to
    slow growth of the virus during the manufacturing process. Today I will
    update you on the overall situation, provide an update on vaccination
    status, and discuss other steps we are taking to address these
    challenges.
        This hearing is also an important opportunity to consider the
    impact this pandemic has had on work, school, and society. And although
    we are focused this year on the impact of the H1N1 pandemic, it is
    important to remember that even in a normal year, individuals and
    institutions are impacted by illnesses, as reflected in lost work and
    school days and lower productivity. Data from our National Center for
    Health Statistics in 2008 show, for example, that employed adults 18
    years of age and over experienced an average of 4.4 work-loss days per
    person due to illness or injury in the past 12 months, for a total of
    approximately 698 million work-loss days.
    Tracking and Monitoring Influenza Activity
        One major area of effort is the tracking and monitoring of
    influenza activity, which helps individuals and institutions monitor
    and understand the impact of the 2009 H1N1 virus. Since the initial
    spring emergence of 2009 H1N1 influenza, the virus has spread
    throughout the world. H1N1 was the dominant strain of influenza in the
    southern hemisphere during its winter flu season. Data about the virus
    from around the world--much of it collected with CDC assistance--have
    shown that the circulating pandemic H1N1 virus has not mutated
    significantly since the spring, and the virus remains very closely
    matched to the 2009 H1N1 vaccine. This virus also remains susceptible
    to the antiviral drugs oseltamivir and zanamivir, with very rare
    exception.
        Unlike a usual influenza season, flu activity in the United States
    continued throughout the summer, at summer camps and elsewhere. More
    recently, we have seen widespread influenza activity in 48 states; any
    reports of widespread influenza this early in the season are very
    unusual. Visits to doctors for influenza-like illness as well as flu-
    related hospitalizations and deaths among children and young adults
    also are higher than expected for this time of year. We are also
    already observing that more communities are affected than those that
    experienced H1N1 outbreaks this past spring and summer.
        Almost all of the influenza viruses identified so far this season
    have been 2009 H1N1 influenza A viruses. However, seasonal influenza
    viruses also may cause illness in the upcoming months--getting one type
    of influenza does not prevent you from getting another type later in
    the season. Because of the current H1N1 pandemic, several additional
    systems have been put in place and existing systems modified to more
    closely monitor aspects of 2009 H1N1 influenza. These include the
    following:
        Enhancing Hospitalization Surveillance: CDC has greatly increased
    the capacity to collect detailed information on patients hospitalized
    with influenza. Using the 198 hospitals in the Emerging Infections
    Program (EIP) network and 6 additional sites with 76 hospitals, CDC
    monitors a population of 25.6 million to estimate hospitalization rates
    by age group and monitor the clinical course among persons with severe
    disease requiring hospitalization.
        Expanding Testing Capability: Within 2.5 weeks of first detecting
    the 2009 H1N1 virus, CDC had fully characterized the new virus,
    disseminated information to researchers and public health officials,
    and developed and begun shipping to states a new test to detect cases
    of 2009 H1N1 infection. CDC continues to support all states and
    territories with test reagents, equipment, and funding to maintain
    laboratory staff and ship specimens for testing. In addition, CDC
    serves as the primary support for public health laboratories conducting
    H1N1 tests around the globe and has provided test reagents to 406
    laboratories in 154 countries. It is vital that accurate testing
    continue in the United States and abroad to monitor any mutations in
    the virus that may indicate increases in infection severity, resistance
    to antiviral drugs, or a decrease in the match between the vaccine
    strain and the circulating strain.
        Health Care System Readiness: HHS is also using multiple systems to
    track the impact the 2009 H1N1 influenza outbreak has on our health
    care system. HHS is in constant communication with state health
    officials and hospital administrators to monitor stress on the health
    care system and to prepare for the possibility that federal medical
    assets will be necessary to supplement state and local surge
    capabilities. To date, state and local officials and health care
    facilities have been able to accommodate the increased patient loads
    due to 2009 H1N1, but HHS is monitoring this closely and is prepared to
    respond quickly if the situation warrants.
        Implementing a Flu-related School Dismissal Monitoring System: CDC
    and the U.S. Department of Education (ED), in collaboration with state
    and local health and education agencies and national non-governmental
    organizations, have implemented a flu-related school dismissal
    monitoring system for the 2009-2010 school year. This monitoring system
    generates a verified, near-real-time, national summary report daily on
    the number of school dismissals by state across the 130,000 public and
    private schools in the United States, and the number of students and
    teachers impacted. The system was activated August 3, 2009. This has
    helped us to calibrate our messages and guidance and may have
    contributed to the smaller number of school closings seen in the fall
    relative to those seen in the spring.
    Providing Science-Based Guidance
        A second major area of effort in support of individuals and
    institutions is to provide science-based guidance that allows them to
    take appropriate and effective action. Slowing the spread and reducing
    the impact of 2009 H1N1 and seasonal flu is a shared responsibility. We
    can all take action to reduce the impact flu will have on our
    communities, schools, businesses, other community organizations, and
    homes this fall, winter, and spring.
        There are many ways to prevent respiratory infections and CDC
    provides specific recommendations targeted to a wide variety of groups,
    including the general public, people with certain underlying health
    conditions, infants, children, parents, pregnant women, and seniors.
    CDC also has provided guidance to workers and in relation to work
    settings, such as health care workers, first responders, and those in
    the swine industry, as well as to laboratories, homeless shelters,
    correctional and detention centers, hemodialysis centers, schools,
    child care settings, colleges and universities, small businesses, and
    federal agencies.
        With the holidays coming up, reducing the spread of 2009 H1N1
    influenza among travelers will be an important consideration.
        CDC quarantine station staff respond to reports of illness,
    including influenza-like illness when reported, in international
    travelers arriving at U.S. ports of entry. Interim guidance documents
    for response to travelers with influenza-like illness, for airline
    crew, cruise ship personnel and Department of Homeland Security port
    and field staff have been developed and posted online. As new
    information about this 2009 H1N1 influenza virus becomes available, CDC
    will evaluate its guidance and, as appropriate, update it using the
    best available science and ensure that these changes are communicated
    to the public, partners, and other stakeholders.
        In preparation for the upcoming months when we expect many families
    and individuals to gather for the holidays, we are preparing to launch
    a national communications campaign to encourage domestic and
    international travelers to take steps to prevent the spread of flu.
    Plans are to display public advertisements with flu prevention messages
    in ports of entry and various other advertising locations, such as
    newspapers and online advertisements, both before and during the
    upcoming holiday travel season.
    Supporting Shared Responsibility and Action through Enhanced
            Communication
        A third major area of effort is to support shared responsibility
    and action through enhanced communication to individuals. Our
    recommendations and action plans are based on the best available
    scientific information. CDC is working to ensure that Americans are
    informed about this pandemic and consistently updated with information
    in clear language. The 2009 H1N1 pandemic is a dynamic situation, and
    it is essential that the American people are fully engaged and able to
    be part of the mitigation strategy and overall response. CDC will
    continue to conduct regular media briefings, available at flu.gov, to
    get critical information about influenza to the American people.
        Some ways to combat the spread of respiratory infections include
    staying home when you are sick and keeping sick children at home.
    Covering your cough and sneeze and washing your hands frequently will
    also help reduce the spread of infection. Taking personal
    responsibility for one's health will help reduce the spread of 2009
    H1N1 influenza and other respiratory illnesses.
        CDC is communicating with the public about ways to reduce the
    spread of flu in more interactive formats such as blog posts on the
    Focus on Flu WebMD blog, radio public service announcements, and
    podcasts.
        Through the CDC INFO Line, we serve the public, clinicians, state
    and local health departments and other federal partners 24 hours/day, 7
    days/week, in English and Spanish both for phone and email inquiries.
    Our information is updated around the clock so we are well positioned
    to respond to the needs and concerns of our inquirers. Our customer
    service representatives get first-hand feedback from the public on a
    daily basis. In addition to the H1N1 response, we continue to provide
    this service for all other CDC programs.
    Prevention through Vaccination
        A fourth major area of effort is prevention through vaccination.
    Vaccination is our most effective tool to reduce the impact of
    influenza. Despite rapid progress during the initial stages of the
    vaccine production process, the speed of manufacturing has not been as
    rapid as initially estimated. CDC, in collaboration with Food and Drug
    Administration (FDA), characterized the virus, identified a candidate
    vaccine strain, and our HHS partners expedited manufacturing, initiated
    clinical trials, and licensed four 2009 H1N1 influenza vaccines all
    within five months. The speed of this vaccine development was made
    possible due to investments made in vaccine advanced research and
    development and vaccine manufacturing infrastructure building through
    the office of the Assistant Secretary for Preparedness and Response
    (ASPR), Biomedical Advanced Research and Development Authority (BARDA)
    over the past four years, and in collaboration with CDC, the National
    Institutes of Health (NIH), and FDA. The rapid responses of HHS
    agencies, in terms of surveillance, viral characterization, pre-
    clinical and clinical testing, and assay development, were greatly
    aided by pandemic preparedness efforts for influenza pandemics set in
    motion by the H5N1 virus re-emergence in 2003, and the resources
    Congress provided for those efforts.
        Pandemic planning had anticipated vaccine becoming available 6-9
    months after emergence of a new influenza. 2009 H1N1 vaccination began
    in early October--5 months after the emergence of 2009 H1N1 influenza.
    Critical support from Congress resulted in $1.44 billion for states and
    hospitals to support planning, preparation, and implementation efforts.
    States and cities began placing orders for the 2009 H1N1 vaccine on
    September 30th. The first vaccination with 2009 H1N1 influenza vaccine
    outside of clinical trials was given October 5th. Tens of millions of
    doses have become available for ordering, and millions more become
    available each week. Although significant delays in vaccine production
    by manufacturers have complicated the early immunization efforts,
    vaccine will become increasingly available over the weeks ahead, and
    will become more visible through delivery in a variety of settings,
    such as vaccination clinics organized by local health departments,
    healthcare provider offices, schools, pharmacies, and workplaces.
        CDC continues to offer technical assistance to states and other
    public health partners as we work together to ensure the H1N1
    vaccination program is as effective as possible. Since September 30th,
    although the number of H1N1 vaccine doses produced, distributed, and
    administered has grown less quickly than projected, states have begun
    executing their plans to provide vaccine to targeted priority
    populations. Although we had hoped to have more vaccine distributed by
    this point, we are working hard to get vaccine out to the public just
    as soon as we receive it.
        H1N1 vaccines are manufactured by the same companies employing the
    same methods used for the yearly production of seasonal flu vaccines.
    H1N1 vaccine is distributed to providers and state health departments
    similarly to the way federally purchased vaccines are distributed in
    the Vaccines for Children program. Two types of 2009 H1N1 vaccine are
    now available: injectable vaccine made from inactivated virus,
    including thimerosal-free formulations, and nasal vaccine made from
    live, attenuated (weakened) virus.
        CDC's Advisory Committee on Immunization Practices (ACIP) has
    recommended that 2009 H1N1 vaccines be directed to target populations
    at greatest risk of illness and severe disease caused by this virus. On
    July 29, 2009, ACIP recommended targeting the first available doses of
    H1N1 vaccine to five high-risk groups comprised of approximately 159
    million people; CDC accepted these recommendations. These groups are:
    pregnant women; people who live with or care for children younger than
    6 months of age; health care and emergency services personnel; persons
    between the ages of 6 months through 24 years of age; and people from
    ages 25 through 64 years who are at higher risk for severe disease
    because of chronic health disorders like asthma, diabetes, or
    compromised immune systems. These recommendations provide a framework
    from which states can tailor vaccination to local needs.
        Ensuring a vaccine that is safe as well as effective is a top
    priority. CDC expects that the 2009 H1N1 influenza vaccine will have a
    similar safety profile to seasonal influenza vaccine, which
    historically has an excellent safety track record. So far the reports
    of adverse events among H1N1 vaccination are generally mild and are
    similar to those we see with seasonal flu vaccine. We will remain
    alert, however, for the possibility of rare, severe adverse events that
    could be linked to vaccination. CDC and FDA have been working to
    enhance surveillance systems to rapidly detect any unexpected adverse
    events among vaccinated persons and to adjust the vaccination program
    to minimize these risks. Two primary systems used to monitor vaccine
    safety are the Vaccine Adverse Events Reporting System (VAERS), jointly
    operated between CDC and FDA, and the Vaccine Safety Datalink (VSD)
    Project, a collaborative project with eight managed care organizations
    covering more than nine million members. These systems are designed to
    determine whether adverse events are occurring among vaccinated persons
    at a greater rate than among unvaccinated persons. CDC has worked with
    FDA and other partners to strengthen these vaccine safety tracking
    systems and we continue to develop new ways to monitor vaccine safety,
    as announced earlier this week by the Federal Immunization Safety Task
    Force in HHS. In addition, based on the recommendation of the National
    Vaccine Advisory Committee (NVAC), HHS established the H1N1 Vaccine
    Safety Risk Assessment Working Group to review 2009 H1N1 vaccine safety
    data as it accumulates. This working group of outside experts will
    conduct regular, rapid reviews of available data from the federal
    safety monitoring systems and present them to NVAC and federal
    leadership for appropriate policy action and follow-up.
        More than 36,000 people die each year from complications associated
    with seasonal flu. CDC continues to recommend vaccination against
    seasonal influenza viruses, especially for all people 50 years of age
    and over and all adults with certain chronic medical conditions, as
    well as infants and children. As of the fourth week in October, 89
    million doses of seasonal vaccine had been distributed. It appears that
    interest in seasonal flu vaccine has been unprecedented this year.
    Manufacturers estimate that a total of 114 million doses will be
    brought to the U.S. market.
    Reducing the Burden of Illness and Death through Antiviral Distribution
            and Use
        In the spring, anticipating commercial market constraints, HHS
    deployed 11 million courses of antiviral drugs from the Strategic
    National Stockpile (SNS) to ensure the nation was positioned to quickly
    employ these drugs to combat 2009 H1N1 and its spread. In early
    October, HHS shipped an additional 300,000 bottles of the oral
    suspension formulation of the antiviral oseltamivir to states in order
    to mitigate a predicted near-term national shortage indicated by
    commercial supply data. In addition, the Secretary authorized the
    release of the remaining 234,000 bottles of pediatric Tamiflu(r) on
    October 29th. We will continue to conduct outreach to pharmacists and
    providers related to pediatric dosing and compounding practices to help
    assure supplies are able to meet pediatric demand for antiviral
    treatment. Finally, CDC and FDA have also worked together to address
    potential options for treatment of seriously ill hospitalized patients
    with influenza, including situations in which physicians may wish to
    use investigational formulations of antiviral drugs for intravenous
    therapy. The FDA issued an emergency use authorization (EUA) on October
    23rd, 2009, for the investigational antiviral drug peramivir
    intravenous (IV) authorizing the emergency use of peramivir for the
    treatment of certain hospitalized adult and pediatric patients with
    confirmed or suspected 2009 H1N1 influenza infection. Physician
    requests for peramivir to be used under the EUA are managed through a
    CDC web portal.
    Closing Remarks
        CDC is working hard to limit the impact of this pandemic, and we
    are committed to keeping the public and the Congress fully informed
    about both the situation and our response. We are collaborating with
    our federal partners as well as with other organizations that have
    unique expertise to help CDC provide guidance to multiple sectors of
    our economy and society. There have been enormous efforts in the United
    States and abroad to prepare for this kind of challenge.
        Our nation's current preparedness is a direct result of the
    investments and support of Congress over recent years, effective
    planning and action by Federal agencies, and the hard work of state and
    local officials across the country. We look forward to working closely
    with Congress as we address the situation as it continues to evolve in
    the weeks and months ahead.
        Again, Mr. Chairman, thank you for the opportunity to participate
    in this conversation with you and your colleagues. I look forward to
    answering your questions.
                                     ______

        Chairman Miller. Thank you very much.
        Dr. Benjamin?

       STATEMENT OF DR. GEORGES C. BENJAMIN, EXECUTIVE DIRECTOR,
                   AMERICAN PUBLIC HEALTH ASSOCIATION

        Dr. Benjamin. Well, good morning, Chairman Miller and
    Ranking Member Kline and members of the committee. Thank you
    very much for allowing me to be here.
        As you know, APHA has been around for quite a while. We
    have been around since 1872, and I spent last evening looking
    at our recommendations back in 1918, the last time we had a
    great pandemic in our country. And interestingly enough, short
    of vaccine, many of our recommendations were the same. They
    were: try to be in good health, wash your hands, cover your
    nose and mouth when you cough and sneeze, and avoid being
    around other people, or try to, where you might, unfortunately,
    infect them.
        Dr. Schuchat and you, Mr. Chairman, talked a great deal
    about the data, and you have my written remarks, and I won't
    repeat those, but just to point out that one of the things that
    APHA has been talking about a lot is the importance for us to
    have a resilient community. And part of resiliency means that
    you have to have a much more comprehensive engagement in just
    the health and public health people in this response.
        Obviously, this type of an outbreak dramatically affects
    business. And we think that there is a huge role that paid sick
    leave for workers plays in really building an essential and
    resilient community. So let me talk first about the paid sick
    leave benefits for business.
        We think legislation like the one you have, Chairman, and
    others, as you mentioned, that are being talked about on the
    Hill today can be a win-win for both the public health and
    business. And, you know, employers don't want sick people in
    the workplace, and sick workers don't want to be at work. But
    the incentives that we have today often incentivize workers to
    come to work, particularly when they are not well and they
    don't get paid for staying home. And I asked myself as I came
    into work today--I came in my building, so let me just walk you
    through what I saw.
        So when you walk into our building, we have a really nice
    building on I Street in downtown D.C., and we have a
    receptionist that you walk past. And then you get in an
    elevator with other people as you drive up to the various
    floors. I noticed my staff congregating around the coffee pot
    in a nice, relatively enclosed room and, of course, some
    meeting in a conference room. Many of our employees are in open
    cubicles.
        I would argue that, despite this being a public health
    association, having lots of hand sanitizer around and lots of
    signs, and I remember the last time I actually, like many other
    people, tried to tough it out and came to work when I wasn't
    feeling well, the workplace can very well be an incubator for
    the spread of infectious diseases, if we don't encourage people
    not to come to work.
        So we think very strongly that sick pay, sick leave for
    employees, can enhance productivity, catch people before they
    want to come to work. See, the problem when you come to work
    and you send people home when they are sick, because they are
    incentivized to come to work and tough it out, is that they are
    infecting people all the way along the way as they come into
    the workplace. And so we think that any proposal ought to
    incentivize people not to come to work when they are sick, to
    do the right thing and stay home.
        Secondly, I think the paid sick leave benefits for
    employees and their families goes without saying. Certainly, if
    you have a sick loved one at home, you want to be able to stay
    home and take care of them. Many parents--good, caring
    parents--when they have to make a decision around paying the
    bills and paying the mortgage and a child is not too sick, we
    all know stories of parents sending their kids to school or to
    day care, only to get called in the middle of the day, because
    the child really isn't feeling well, and you have got to go
    pick them up.
        Well, in an infectious disease, that is a real problem.
    Paid sick leave certainly encourages people not to put
    themselves at risk, not put their kids at risk, not put their
    communities at risk, and so we strongly support that as a core
    principle.
        And then, obviously, paid sick leave benefits the community
    and consumers just simply because if you are in a business and
    someone is sick and that business, particularly with this kind
    of infectious disease, they may often infect your customers.
    And the last thing you want to do, of course, is make a
    customer ill. So we think that legislation like this and other
    legislation that we have, discussing like this on the Hill
    today, aptly promote the public health and promote productivity
    in the workplace, and we are here to support that.
        APHA has had a policy which supports employers to make
    comprehensive plans around these kinds of events, particularly
    contingency in emergency preparedness plans, continuity of
    operations plans. And the worst thing one can do, and the worst
    problem one has, even as a small employer, is to not be
    prepared for this kind of thing. I know that there is a lot of
    debate about what this costs small employers, but I would
    submit that the cost to not do this can certainly put a small
    employer out of business as well.
        With that, I will stop. Thank you very much.
        [The statement of Dr. Benjamin follows:]

       Prepared Statement of Georges C. Benjamin, M.D., FACP, FACEP (E),
             Executive Director, American Public Health Association

        Chairman Miller, Ranking Member Kline, members of the Committee,
    thank you for the opportunity to join you this morning to represent the
    views of the American Public Health Association (APHA) on the important
    role that sick leave policies play in the containment of H1N1 infection
    and in the public health well-being of America. APHA is the oldest and
    most diverse organization of public health professionals in the world
    representing a broad array of health officials, educators,
    environmentalists, policy-makers, and health providers at all levels
    working both within and outside government organizations and education
    institutions to improve the health of our nation and the world.
        Influenza is a public health threat that arrives in our communities
    every fall. However, the emergence this year of the novel H1N1 virus
    has demonstrated the capacity for a widespread outbreak and the
    potential complications should the virus become a more virulent strain
    than exists today. We are very pleased that the Committee is looking at
    the critical issues facing both employees and employers as we deal with
    the impacts of H1N1 on the workplace.
        Since identified in April of this year, health officials estimate
    that 22 million people have been sickened by H1N1. Latest infection
    estimates indicate that about 98,000 people have been hospitalized and
    about 4,000 have died due to H1N1; 36,000 and 540 of which are
    children, respectively.\i\
    ---------------------------------------------------------------------------
        \i\ U.S. Centers for Disease Control and Prevention. Weekly 2009
    H1N1 Flu Media Briefing, November 12, 2009. Available at www.cdc.gov/
    media/.
    ---------------------------------------------------------------------------
        Information analyzed by CDC indicates that the 2009 H1N1 flu has
    caused greater disease burden in people younger than 25 years of age
    than older people. Compared with seasonal flu, there are relatively
    fewer cases and deaths reported in those over 65 years of age. More so
    than seasonal flu, therefore, H1N1 flu is affecting the younger
    workforce.\ii\
    ---------------------------------------------------------------------------
        \ii\ U.S. Centers for Disease Control and Prevention. 2009 H1N1 Flu
    (``Swine Flu'') and You. Available at http://www.cdc.gov/h1n1flu/
    qa.htm.
    ---------------------------------------------------------------------------
        The response toward building a resilient and healthy community
    requires thorough planning and a comprehensive approach at all levels
    of society from individuals to families; and in all places where we
    play, learn and work. Resiliency enables a community to withstand the
    ravages of a pandemic and hasten the community's return to normal. Paid
    sick leave for workers is essential to building resilient communities
    in an infectious emergency.
        Operationalizing our response to the H1N1 outbreak requires a
    coordinated effort across all levels of society. The federal government
    sets the national tone for successful emergency response and provides
    the latest information, guidance, research and advice. In the face of
    H1N1, the federal government has successfully led preparedness efforts
    by creating a national plan, working quickly to identify the viral
    strain, create the substrate to grow the vaccine, and collaborating
    with state and local health departments to respond to the outbreak.
        However, all sectors in our communities must be prepared as well.
    Businesses need to have a plan in place to reduce the spread of
    infectious disease in the workplace, and personnel policies that
    supports the goal of ensuring the health and wellbeing of their
    employees, their customers and their business. Paid sick leave for
    employees supports this goal.
        We know that people with H1N1 are going into work everyday.
    Companies subject to the Family and Medical Leave Act are required to
    offer unpaid sick leave, but most employees without a paid sick leave
    benefit do not have the financial security necessary to stay home from
    work when they or a family member are sick. This problem is especially
    problematic during the current H1N1 pandemic.
    I. Paid Sick Leave Benefits for Business
        An unhealthy worker or somebody in the workplace spreading disease
    affects business. CDC estimates that a sick worker can infect one in
    ten co-workers. While voluntary action is an option, an infectious
    worker who may spread disease to co-workers and customers is a threat
    not only for the business, but to the public at large as well. Sick
    workers are not productive ones and by spreading disease in the
    workplace risk the overall productivity of the business. By providing
    paid leave for sick workers, worker safety and business productivity
    can both be enhanced--a win-win for employers. This is particularly a
    plus for small employers where preventable losses of even a small
    number of workers can have a devastating effect on the business.
    Mandatory sick leave encourages employees to stay out of the workplace
    when appropriate, protecting the business and I believe hastens the
    employees return to productive work.
    II. Paid Sick leave Benefits for Employees and Their Families
        While we want to encourage workers to make healthy and rational
    decisions, when they are faced with the choice of staying home sick
    without pay or going into work sick so they can put food on the table
    and pay their mortgage, many workers choose to go to work and ``tough
    it out,'' putting their co-workers and their customers at risk.
        Additionally, if an employee has a sick family member, often a
    child, the employee has to decide if they should stay home to care for
    the sick family member and loose pay or, send the child to school or
    daycare so they can go to work. Obviously, sick children should stay at
    home, however even caring parents challenged with the decision to pay
    the bills or not; may err on the side of sending the child to school,
    if the child does not appear to be too ill. Sick children are not
    productive learners, and being in school or daycare puts the rest of
    the community at risk, particularly with infectious diseases like
    influenza. Employees who are parents should not have to make this
    choice.
    III. Paid Sick Leave Benefits for Customers and the General Public
        Prevention is the best tool individuals, businesses, and
    communities have to staving off the spread of influenza infection.
    Vaccination is always the first line of defense with vaccine
    preventable diseases. Seasonal flu vaccine is available now and should
    be given as recommended by public health authorities. Initial doses
    2009 H1N1 flu vaccine should also be given as recommended as available.
        Nonpharmaceutical measures such as:
        1. Covering your nose and mouth with a tissue, or your elbow, when
    you cough or sneeze;
        2. Washing your hands frequently with soap and water, or alcohol-
    based hand-rubs if soap and water are not available; and
        3. Social distancing strategies such as staying home from work or
    school if you get sick, and limit contact with others until you are
    symptom free for at least 24 hours to keep from infecting others.\iii\
    Paid sick leave is an important tool to make social distancing an
    effective strategy in the workplace.
    ---------------------------------------------------------------------------
        \iii\ American Public Health Association. H1N1 Facts. Available at
    www.getreadyforflu.org/preparedness/H1N1--new.htm.
    ---------------------------------------------------------------------------
        While there have been some improvements, too few businesses today
    have pandemic influenza preparedness plans in place.\iv\ APHA policy
    strongly supports the development and implementation of pandemic
    preparedness plans within the business communities.\v\ Such plans
    should include:
    ---------------------------------------------------------------------------
        \iv\ Center for Infectious Disease and Policy. Conference poll: 18%
    of businesses have pandemic plan [press release], February 15, 2006.
    Available at www.cidrap.umn.edu/cidrap/content/influenza/biz-plan/news/
    feb1506survey.html.
        \v\ American Public Health Association. Preparing for Pandemic
    Influenza, Policy Number: 20063, November 8, 2006.
    ---------------------------------------------------------------------------
        1. Employee training and education programs related to pandemic
    influenza to ensure that employees are aware of how to prevent
    transmission of the flu, signs and symptoms of the virus, and the need
    to stay home from work when they are sick; and
        2. Policies for employee compensation and sick leave that would be
    used during a pandemic that are not punitive and provide employees with
    adequate financial security to enable them to stay home from work when
    they or a family member are sick.
        Our last line of defense against spreading infection lies with each
    and every one of us. We have both an individual and collective
    responsibility to keep ourselves healthy and help prevent the spread of
    flu. We should follow the guidance from health authorities: get
    vaccinated against both seasonal and H1N1 flu, wash our hands often
    with soap and water, and avoid close contact with those who are sick.
        If we become ill, it also means helping our family, friends, co-
    workers and community stay healthy by staying home from work, avoiding
    public places, covering our mouth and nose when we cough or sneeze, and
    practicing good hand hygiene.
        We've come a long way in being prepared for public health
    emergencies such as an H1N1 flu outbreak, but we have more work to do
    to protect America's health. Paid sick leave for employees is one
    important next step.
                                     ______

        Chairman Miller. Thank you.
        Mr. Clarke?

         STATEMENT OF BRUCE CLARKE, PRESIDENT AND CEO, CAPITAL
                      ASSOCIATED INDUSTRIES, INC.

        Mr. Clarke. Good morning, Chairman Miller, Ranking Member
    Kline, committee members, panelists. I am Bruce Clarke. I am
    CEO of Capital Associated Industries, a nonprofit employers'
    association that serves over 1,000 North Carolina employers and
    helps them manage well, pay well, benefit well, and stay in
    compliance with thousands of federal, state and local workplace
    rules.
        Our members are concerned about employee health, their
    families' health, and, yes, even business continuity in a
    pandemic. We understand the emergency, and we are adapting to
    it. But we also understand the longer-term issues caused by
    paid leave mandates. We survey our members and their benefits
    practices and link our survey data with similar groups around
    the nation.
        When it comes to availability of paid time for absence due
    to illness, the glass is not just half full--the glass is over
    80 percent full. I believe the marginal visible benefit of the
    proposed national mandates will create far more invisible and
    unintended consequences and that the glass will actually be
    less full than it is today. Here is why.
        Employers provide dozens of benefits to give employees paid
    time away from work. There are literally hundreds of mixtures
    and combinations of these benefits crafted to suit a specific
    workplace best. An example: we have a large food processor that
    provides no paid sick days as such. Instead, they chose to
    purchase a fully insured short-term disability policy for every
    single hourly employee in the facility, providing a wage
    substitute during their illness of up to 6 months. This is
    designed to prevent true financial ruin during a medium-term
    illness.
        Who is to say this company should spend their benefits
    dollars on 5 or 7 sick days instead? Who wins from that trade-
    off? Employers are usually rational economic units. If told to
    carve out 3 percent of payroll for a specific benefit, they
    will do so, and then reduce spending on other pay and benefits.
        This problem of benefits substitution may be most acute in
    PTO, or paid time-off policies, which typically lump vacation,
    sick and personal days into one bank and allow use for any of
    these purposes. Employers that provide PTO time without
    labeling days specifically as sick days must decide whether to
    add the new mandated benefit to the current benefit or to
    reduce one while creating the other. One-quarter of employers
    use PTO accounts and would face this dilemma.
        Anything that forces a PTO plan to carve out days
    specifically for illness also punishes people who want those
    days available for other personal use or simply desire privacy
    about the reason for their use.
        Our own surveys of employers nationwide tell us that 80
    percent-plus of employers provide a paid sick day benefit, with
    the average being 7 to 9 days per year when there is a defined
    number. Seventy to 90 percent allow use of sick time for non-
    emergency needs like dental visits, routine doctors visits,
    plus used for family members' needs.
        Vacation pay is provided by 95 percent-plus of employers,
    and virtually all employers allow its use for any reason. More
    than half of the employers provide qualified part-time
    employees vacation and/or sick days on a reduced schedule.
    Mandating paid sick time policies will force a new baseline
    from which all employers with 15 employees will be required to
    rewrite their many types of pay when not working policies.
        Flexibility will be reduced to balance costs. Examples of
    my members' recent flexible responses to H1N1 include extra
    pandemic flu time off banks that go beyond current sick or PTO
    days, borrowing from future sick time accruals when current
    accounts are exhausted, making up lost paid time on other days
    and on other projects, unlimited paid days--sick days--for flu-
    like symptoms whenever there is a national or local pandemic
    declared, granting extra paid sick days if the employee or
    family member took the flu shot, if it was available, paying
    for the flu shots.
        Employers are working hard to treat employees as they would
    wish to be treated within the bounds of hard economic
    realities. These are the reasons why I believe we should leave
    that paid time off glass over 80 percent full, and we should
    not risk damaging the overall level and types of paid time off
    by favoring one type over another through a national mandate.
        In closing, my comments today have focused primarily on the
    impact of the Healthy Families Act upon employer policies and
    flexibility. I would like to make a brief comment on the
    recently proposed Emergency Influenza Containment Act.
        I am concerned that the bill leaves too many key provisions
    unclear and ill-defined for a law designed to take effect 15
    days after enactment. Employers are not expert at diagnosing
    illness, and idle comments about that from a supervisor or
    manager may be perceived as directing or suggesting that they
    go home.
        The safe harbor provision may or may not apply when an
    employer uses its normal processes for leave. With the safe
    harbor applied to PTO plans, which do not mention sick pay
    specifically? It suffers as well from the problems caused by
    any national mandate in the context of a complex but effective
    employer-provided way of paid leave.
        Thank you for the time to speak with you today. I look
    forward to your questions.
        [The statement of Mr. Clarke follows:]

    Prepared Statement of A. Bruce Clarke, J.D., President and CEO, Capital
                          Associated Industries, Inc.

        Good morning Chairman Miller, Ranking Member Kline and
    distinguished members of the Committee. I appreciate the opportunity to
    speak with you today about employer-paid sick leave policies and ways
    that employers are responding to the current H1N1 influenza outbreak.
        I am Bruce Clarke, President and CEO of Capital Associated
    Industries (CAI), a non-profit employers' association that helps 1,000
    North Carolina employers manage well, pay well, provide high-quality
    benefits and stay in compliance with thousands of federal, state and
    local workplace rules.
        While the Committee continues to explore paid leave issues, it is
    important to recognize the broad scope of their impact and the efforts
    that are already underway by employers to respond to the current H1N1
    pandemic.
        CAI shares your goal of protecting the health of the American
    workforce while minimizing the spread of any contagious disease. As the
    Committee considers legislation, however, it is important that any
    proposal support and protect the existing paid leave programs and
    workplace flexibility initiatives employers have in place--especially
    among our nation's smallest employers.
    Overview of Existing Employer Leave Practices
        Our national network of Employer Associations cooperates each year
    on surveys asking hundreds of questions about pay and benefits at
    thousands of workplaces nationwide.
        I can say confidently that when it comes to the availability of
    paid leave from employers for sick leave, the glass is not just half
    full; it is more than 80 percent full. I believe the marginal perceived
    visible benefit of a proposed national mandate will create far more
    invisible and unintended detriments that will, most importantly, result
    in that glass being considerably less full than it is today.
        Today, employers provide dozens of types of benefits that give
    employees paid leave. Manufacturers in particular have provided
    generous family-friendly benefits that include leave programs.
    According to the Department of Labor's Bureau of Labor Statistics
    (BLS), nearly all full-time workers have access to paid illness leave.
    Specifically, the Monthly Labor Report in February 2009 shows that 93
    percent of full-time workers and over half of part-time employees have
    access to paid sick leave.
        According to the BLS, manufacturing employees on average earn over
    20 percent more in compensation than the rest of the workforce and 96
    percent of manufacturers provide a paid leave benefit that their
    employees can use specifically for illness, doctor's appointments or to
    care for an ill family member.
        While some may point to the lack of formal requirements for
    employers in the U.S. to provide paid leave, the reality is that such
    types of leave are already widespread in our workforce. Paid leave is
    an important component of a wide variety of different types of leave
    provided to employees.
        Annually, my organization surveys our members on hundreds of
    business practices, wages, health care benefits and other data to keep
    them competitive and aware of market conditions. Our most recently
    published Policy and Benefits survey for 2009-2010 shows:
        Over 80 percent of employers in North Carolina provide a specific
    paid leave benefit, with the average being 7 to 9 days per year;
        70 to 90 percent of respondents allow use of sick time for non-
    emergency needs like dental and routine doctor visits and for ill
    family members;
        Vacation pay is such a common benefit in the group of employers
    with more than 15 employees that we only ask them how many days they
    provide, not whether they provide it. Virtually all allow its use for
    personal and family illness;
        60 percent of employers in this survey even provide long-term
    disability policies for employees; and
        More than half of the employers provide qualified part-time
    employees accrual of vacation and/or sick days on a reduced schedule.
        While most private sector employees are provided some form of paid
    leave, many employers don't differentiate between various types of
    leave. There is evidence of a growing trend by employers to provide
    general paid time off (PTO) plans that allow employees to use their
    leave in the way that best fit their needs. A flexible PTO policy
    supports and encourages employees to stay home when they are sick or to
    take care of ill family members. These systems also protect employees'
    privacy as employees often do not have to disclose to their employers
    the reasons why they are requesting time off.
        In particular, over one-quarter of manufacturers use such a policy,
    and that number is growing. Employers require the flexibility to
    continue to provide their employees with the benefits and paid leave
    models that best fit the needs of their individual businesses and
    workforces.
    Employer Response to the H1N1 Outbreak
        Just as many families across the country are taking steps to
    protect against the further spread of the H1N1 flu, many employers also
    have developed or are in the process of developing continuity plans to
    proactively mitigate the spread of H1N1 in the workplace. These plans
    seek to ensure that businesses can function during this national
    emergency while addressing the needs of their employees.
        Examples of these responses include: telecommuting, job sharing,
    waiving notice requirements, absence forgiveness and paid time off for
    the employee's own illness or to care for ill family members.
        Mandating paid sick leave policies will create a new baseline
    structure from which all employers with over 15 employees will be
    required to re-write their many types of ``pay when not working''
    policies. I believe that starting over from that mandated foundation
    and its rigid terms will discourage the kinds of innovative and
    additive benefits we see employers spontaneously creating during this
    pandemic.
        I have recently asked our members in North Carolina what specific
    steps that they are taking. I have heard a wide variety of responses
    from many members, including:
        Paying for vaccines to be administered at job sites;
        Advising employees to stay home if they are displaying flu-like
    symptoms without any disciplinary actions or having the leave count
    against them;
        Allowing employees to make up for the missed hours with additional
    shifts;
        Allowing them to work from home with greatly reduced
    responsibilities;
        Enabling employees to advance sick days forward; and
        Allowing employees additional paid time off to take care of ill
    family members.
        While some employers may not have taken specific action in response
    to the H1N1 outbreak, these employers are clearly the exception to the
    widespread practices taking place today. These types of creative
    approaches are the result of flexibility that employers have to develop
    policies that best fit their workforce needs. Any proposal that
    mandates the type of leave that employers must provide will ultimately
    threaten overall levels and types of responses employers are engaged
    in.
    Congressional Proposals
        There has been much discussion of paid leave proposals in light of
    this outbreak. However, it's important that Congressional activity not
    threaten employers' ability to creatively design programs that meet the
    unique needs and constraints of their workforce.
        Federal paid leave policy should encourage employers to provide
    paid sick leave rather than impose restrictive, one-size-fits-all
    mandates. Such requirements applied to the broad, diverse industries
    that make up our nation's economy negatively impact all employers,
    especially small businesses, and limit our ability to retain and create
    new jobs.
        Many of the proposals introduced, such as the Healthy Families Act,
    are overly burdensome because they apply to the smallest of employers.
    Under the Healthy Families Act proposal--employers of all sizes would
    be subject to the same restrictive leave mandate that includes both
    part-time and full-time employees. This would be on top of or in
    addition to requirements in place in several states and municipalities.
    Congress has previously recognized the disproportionate impact leave
    mandates have on small employers in related employment statutes like
    the Family Medical Leave Act. Federal legislation should continue to
    reflect these principles.
        In many ways, such mandate proposals would actually hinder current
    efforts by employers. Specifically, the Emergency Influenza Containment
    Act would place requirements on employers without comprehensive
    guidance from the Department of Labor on how to implement them.
        Additionally, the language of this proposal creates a leave
    entitlement to employees directed, instructed or advised by their
    employer to not come into work or to leave work if they are displaying
    contagious symptoms. This overly broad definition will make effective
    implementation by employers difficult. In many workplaces, it may also
    discourage employers from sending employees home. We have several
    questions about how this bill would be implemented:
         The bill states that paid leave should be provided to
    employees who are directed by their employer to come into work.
    However--how should ``directed'' be interpreted? Employers could have a
    range of conversations or contacts with their employees, which might or
    might not rise to the level of a ``direction''.
         Who is the employer? What if a lower level supervisor says
    something that is later revoked by someone with more authority?
         What does it mean to have the employer ``believe the
    employee has symptoms of a contagious illness?'' Is one sneeze enough
    for them to form this conclusion? Employers are typically not medical
    professionals able to make this determination.
         How is an employer to protect the rights of employees'
    privacy with regard to their determination if an employee has been in
    close contact with an individual who has such symptoms?
         Under this bill--an employer can terminate the paid leave
    if he or she ``believes the employee * * * has symptoms of a contagious
    illness or poses a threat of contagion to other employees or to the
    public.'' How would an employer formulate this belief if the employee
    isn't present in the workplace?
         This bill would take effect 15 days after enactment
    without any implementation regulations or timeliness for when guidance
    from the federal government will be provided. How are employers
    expected to meet this bill's requirements without appropriate
    regulations in place?
         This bill attempts to provide a safe harbor for employers
    who either do not employ 15 or more employees or already meet its
    conditions. (See Sec. 10 (3) (A), (B).)
        How would employers provide PTO plans, where an employee has paid
    leave provided without specifying the reason for being treated? Such
    plans are becoming very popular as they relieve employers of the need
    to track multiple kinds of leave and the reasons for the leave and
    typically allow employees to receive the paid leave in compensation
    when they terminate employment.
        Would employers get credit only for offering a traditional paid
    sick leave style plan?
        What happens if an employee is provided leave but has exhausted it
    by the time he or she needs to be out under this bill?
        How should part-time employees be treated with respect to whether
    an employer employs 15 or more employees?
        What if the company uses an employee agency? How should those
    employees be counted?
        The language of Section (B) says that for an employer policy to
    qualify, it must not only provide five days of paid sick leave per 12
    month period, but that this leave ``may be used at the employee's
    discretion.'' Such a requirement would disqualify many employer leave
    policies that would otherwise satisfy this safe harbor as employers
    frequently include a provision that leave be subject to notification,
    scheduling, or other requirements. Would such requirements disqualify a
    leave policy from satisfying this safe harbor?
        These proposals lack the necessary clarity for employers to
    effectively implement and would limit the flexibility employers have to
    address their workforce needs.
        Further, these current proposals do not recognize employers that
    are already providing generous levels of paid leave from any mandated
    leave requirements. Specifically, they will require employers that
    provide generous leave benefits through a PTO system to add additional
    leave on top of their existing benefit mix--thus adding costs.
        If employers are required to carve out 3 percent of overall payroll
    dollars for a specific benefit to be used under specific conditions
    with specific rollover provisions and penalties for violations, they
    will do so as a group but by reducing expenditures on other pay and
    benefits. The problems with benefit substitution are most acute in
    employers that utilize general PTO policies which typically combine
    vacation/sick/personal days into one bank of time and allow use for any
    of those purposes. If employers are mandated to provide a certain level
    of a specific leave benefit--they must decide whether to add that on
    top of existing employer leave policies or to reduce the existing in
    order to meet the new mandate.
        A mandate would be a strong disincentive for employers to utilize
    PTO programs. Under such a system, they could no longer control the
    terms of use and accrual on the newly mandated days of paid sick time.
    Employers would either have to carve out separate leave to meet the
    definitions of the new mandate or have to convert their entire PTO
    system to be subject to the same procedural rules as the new mandate.
        As our economy begins to recover from the most severe recession
    since the Great Depression, businesses need to maintain flexibility in
    order to survive, grow and provide jobs in the face of ongoing
    challenges, including the potential impact of contagious illnesses such
    as H1N1.
    Conclusion
        During this public health crisis and challenging economic times, I
    strongly caution against Congress rushing legislation that doesn't
    recognize and protect efforts currently underway by employers and
    hinders existing response and job creation efforts. Employers are in
    the best position to understand the needs of their workforce.
        Employers have serious concerns with many aspects of the paid leave
    proposals as currently drafted. However, I look forward to working with
    the Committee to meet our shared goal of maintaining a healthy and
    productive workforce while ensuring the job retention and job creation
    that will assist economic recovery efforts.
        Thank you for the opportunity to testify before the Committee, and
    I welcome your questions.
                                     ______

        Chairman Miller. Ms. Ness?

    STATEMENT OF DEBRA L. NESS, PRESIDENT, NATIONAL PARTNERSHIP FOR
                           WOMEN AND FAMILIES

        Ms. Ness. Good morning, Chairman Miller, Ranking Member
    Kline, members of the committee and fellow panelists.
        The National Partnership for Women and Families is a
    nonprofit, nonpartisan advocacy group that has been working on
    issues important to women and families for almost four decades.
    I thank you for inviting me to testify in support of this
    legislation that workers urgently need during this national
    H1N1 emergency.
        And, Mr. Chairman, a special thank you to you for all you
    have done to shine a spotlight on this issue.
        The National Partnership leads a very broad-based coalition
    in support of paid sick days. I am testifying today on behalf
    of the millions of people represented by civil rights, women's,
    children's, anti-poverty, disability, labor, health and faith-
    based communities. We all urge you to move quickly to pass
    legislation that guarantees working people paid, job protected
    time off from work to recover from their own illness or to care
    for a sick child or family member, especially during this H1N1
    epidemic.
        It is a travesty that millions of hard-working people in
    this country have no paid sick days. Almost half of private-
    sector workers and four in five low-wage workers, most of them
    women, don't have a single paid sick day. And especially now,
    when H1N1 has infected millions, our failure to provide a
    minimum standard of paid sick days is taking a terrible toll.
        Over the past few months, experts and public officials from
    the CDC to the president have been telling us to stay home and
    keeps sick children home to prevent the spread of the virus.
    That is great advice, but unfortunately, millions of workers
    simply cannot take that advice. For them, staying home means
    risking their paychecks and even their jobs.
        So what is responsible? What is doing the right thing when
    staying home means risking that paycheck that your family
    depends on?
        People who provide care for family members face even
    greater challenges. We know that the H1N1 virus attack rate
    among children and youth is especially high. Many of them need
    a parent to care for them when they get sick. And that is why
    the lack of paid sick days is particularly challenging for
    working women who have primary responsibility for child care as
    well as elder care.
        Our failure to guarantee paid sick days also is
    particularly hard on low-income people and those in communities
    of color, who tend to hold the low-wage, no benefit jobs. The
    Boston Public Health Commission recently reported that the
    incidence of H1N1 is much higher for African-Americans and
    Latinos in that city. Without paid sick days and the ability to
    stay home or get care, the disease spreads more rapidly and
    people get sicker.
        The lack of paid sick days is also putting our public
    health at risk. Only 22 percent of food service and public
    accommodation workers have paid sick days. Workers in child
    care centers and nursing homes disproportionately lack paid
    sick days. They are forced to work when they are sick, and in
    so doing they put their co-workers, those they care for, and
    the public at risk.
        And while the need for paid sick days is particularly
    compelling during this H1N1 emergency, the reality is that
    working families struggled without paid sick days prior to this
    emergency, and they will continue to struggle unless and until
    Congress acts. Every year seasonal flu and other illnesses
    strike millions of us, and every year our failure to let
    workers earn paid sick days puts the economic security of
    families at risk. And the recession we are in exacerbates the
    problem.
        I certainly don't need to tell you how many families that
    once relied on two incomes are now managing on one or none. In
    a survey last month, five out of six workers said the recession
    was creating more pressure to show up for work, even when they
    are sick.
        Mr. Chairman and members of the committee, we need a
    minimum standard of paid sick days so that taking time off for
    the flu or any other illness does not lead to financial
    disaster.
        Finally, I would like to end with the point that paid sick
    days are also good for business and our economy. Today Stanford
    University Press is releasing a book called ``Raising the
    Global Floor,'' a book by Jody Heymann that reports on an 8-
    year study examining the impact of paid sick days, paid family
    leave, breast-feeding and other family-friendly policies around
    the world.
        It concludes that nations that guarantee leave to care for
    personal or family health needs are actually ranked highest in
    terms of economic competitiveness. And I would be happy to
    provide copies of that book for every member of this committee.
        The research confirms that when businesses take care of
    their workers, they are better able to retain them. And when
    workers have paid time off, their commitment, their
    productivity and their morale increases. Employers reap the
    benefit of lower turnover in training cost.
        The cost of losing an employee is often much greater than
    the cost of providing short-term leave to retain an employee.
    And in this economy and during this health emergency, smart
    businesses know that they can't afford presenteeism, workers
    who go to work sick and get other people sick and cause more
    absenteeism. Presenteeism costs our national economy $180
    billion annually more than absenteeism.
        So like the minimum wage, our nation needs a basic federal
    labor standard of paid sick days that protect all employees, is
    paid, is job protected, is accessible to workers at their
    discretion, and is available to care for a sick child or
    parent. I urge you to pass the Healthy Families Act quickly.
    And I thank you for this opportunity to testify.
        [The statement of Ms. Ness follows:]

     Prepared Statement of Debra L. Ness, President, National Partnership
                             for Women and Families

        Good morning Chairman Miller, Ranking Member Kline, members of the
    Committee and my distinguished fellow panelists. Thank you for inviting
    us to talk about the policies our nation's workers urgently need during
    this H1N1 flu emergency. Chairman Miller, you've been a consistent
    champion on a broad range of issues that support working families,
    including paid sick days. Your leadership during this national H1N1
    emergency has caused media and the public to acknowledge the connection
    between giving workers the chance to earn paid sick days and stopping
    the spread of H1N1.
        I am Debra Ness, President of the National Partnership for Women &
    Families, a non-profit, non-partisan advocacy group dedicated to
    promoting fairness in the workplace, access to quality health care, and
    policies that help workers meet the dual demands of work and family. I
    am here to testify on behalf of a broad coalition of children's, civil
    rights, women's, disability, faith-based, community and anti-poverty
    groups as well as labor unions, health agencies and leading researchers
    at top academic institutions. They include 9to5, MomsRising.org, the
    Leadership Conference on Civil Rights, the AFL-CIO and SEIU, the Family
    Values @ Work Consortium, the National Organization for Women and
    dozens of other organizations. Together, we urge Congress to quickly
    pass legislation that guarantees working people paid, job-protected
    time off from work to recover from illness and to care for a sick child
    or family member--especially during this national H1N1 flu emergency.
    Workers Need Paid Sick Days During this H1N1 Flu Emergency
        In recent months, much attention has focused on the H1N1 virus and
    the best ways to contain it--and with good reason. H1N1 is a novel flu
    virus that experts predict may result in many more illnesses,
    hospitalizations and deaths this year than would be expected in a
    typical flu season.\1\ Forty-eight states had ``widespread flu
    activity'' as of Oct. 31, according to the Centers for Disease Control
    and Prevention (CDC).\2\ The CDC recorded nearly 18,000
    hospitalizations and nearly 700 deaths related to H1N1 flu between Aug.
    30 and Oct. 31.\3\ The virus is now so widespread that the CDC and
    World Health Organization are no longer keeping track of the number of
    individual cases. Officials estimate that if 30 percent of the
    population contract the virus, it could mean approximately 90 million
    people in the U.S. could become ill, 1.8 million may need to be
    hospitalized, and approximately 30,000 could die.\4\ As a result,
    President Barack Obama declared the H1N1 flu outbreak a national
    emergency, allowing hospitals and local governments to quickly set up
    alternate sites for treatment and triage procedures, if needed, to
    handle any surge of patients.\5\
        Week after week, government officials urge sick workers to stay
    home and keep sick children at home to prevent the spread of the H1N1
    virus. Commerce Secretary Gary Locke said that ``if an employee stays
    home sick, it's not only the best thing for that employee's health, but
    also his coworkers and the productivity of the company.'' \6\ Health
    and Human Services Secretary Kathleen Sebelius said that ``one of the
    most important things that employers can do is to make sure their human
    resources and leave policies are flexible and follow public health
    guidance.'' \7\
        The CDC has also issued recommendations: ``People with influenza-
    like illness [must] remain at home until at least 24 hours after they
    are free of fever * * * without the use of fever-reducing
    medications.''8 In addition to the guidance for workers, officials have
    stated that schools and child care providers will need to rely on
    parents to keep children at home if they are feverish.\9\ This is
    excellent advice, as far as it goes, but unfortunately, taking this
    advice isn't an option for millions of workers. They may want to do the
    right thing and do all they can to prevent the spread of the H1N1
    virus. But for many, doing their part means risking their paychecks and
    even their jobs, because they lack job-protected paid sick days.
        Working people need paid time off from their jobs to recover from
    the H1N1 flu and care for sick family members--and prevent further
    spread of the virus. Yet, the reality is that nearly half (48 percent)
    of private-sector workers lack paid sick days.\10\ The same is true for
    nearly four in five low wage workers--the majority of whom are
    women.\11\ Women also are disproportionately likely to lack paid sick
    days because they are more likely than men to work part-time, or to
    cobble together an income by holding more than one part-time position.
    Only 16 percent of part-time workers have paid sick days, compared to
    60 percent of full-time workers.\12\
        Especially during this epidemic, workers with caregiving
    responsibilities in particular have an urgent need for paid sick days.
    The highest H1N1 virus attack rate is among 5-to 24-year olds, many of
    whom need to stay home from school when sick--often with a parent to
    care for them.\13\ That's why the lack of paid sick days is
    particularly challenging for working women--the very people who have
    primary responsibility for most family caregiving. In fact, almost half
    of working mothers report that they must miss work when a child is
    sick. Of these mothers, 49 percent do not get paid when they miss work
    to care for a sick child.\14\
    Our Failure to Establish a Paid-Sick-Days Standard is Putting the
            Public Health at Risk During the H1N1 Emergency
        Our nation's failure to provide a minimum standard of paid sick
    days is putting our public health at risk. Many of the workers who
    interact with the public every day are without paid sick days. Only 22
    percent of food and public accommodation workers have any paid sick
    days, for example. Workers in child care centers and nursing homes, and
    retail clerks disproportionately lack paid sick days.\15\ Because the
    lack of paid sick days forces employees to work when they are ill,
    their coworkers and the general public are at risk of contagion.
        Research released this year by Human Impact Partners, a non-profit
    project of the Tides Center, and the San Francisco Department of Public
    Health, found that providing paid sick days to workers will
    significantly improve the nation's health. This groundbreaking study
    found that guaranteeing paid sick days would reduce the spread of
    pandemic and seasonal flu. More than two-thirds of flu cases are
    transmitted in schools and workplaces. Staying home when infected could
    reduce by 15 to 34 percent the proportion of people impacted by
    pandemic influenza.
        The Human Impact Partners analysis also found that if all workers
    had paid sick days, they would be less likely to spread food-borne
    disease in restaurants and the number of outbreaks of gastrointestinal
    disease in nursing homes would reduce. The researchers provided
    evidence that paid sick days may be linked to less severe illness and
    shorter disability due to sickness, because workers with paid sick days
    are 14 percent more likely to visit a medical practitioner each year,
    which can translate into fewer severe illnesses and hospitalizations.
    They also found that parents with paid time off are more than five
    times more likely to provide care for their sick children.
        Recent data on the impact of the H1N1 virus in Boston, Mass. shows
    that the outbreak has hit certain mostly low-income communities harder
    than other communities. The Boston Public Health Commission reported
    that more than three in four Bostonians who were hospitalized because
    of H1N1 were black or Hispanic.\16\ Boston's experience is not unique.
    Communities of color all across the country face similar health
    disparities and they may be due, in part, to the fact that low-wage
    workers are less likely to have paid sick days.
    Beyond the H1N1 Emergency
        While the need for paid sick days may seem particularly compelling
    during the H1N1 emergency, the reality is that working families
    struggled without paid sick days prior to this emergency, and they will
    continue to struggle after this emergency unless Congress takes action.
    Paid sick days aren't just about protecting the public's health--they
    are also about protecting the economic security of millions of workers
    and their families. One in six workers report that they or a family
    member have been fired, suspended, punished or threatened with being
    fired for taking time off due to personal illness or to care for a sick
    relative, according to a 2008 University of Chicago survey commissioned
    by the Public Welfare Foundation. To put a face on some of those
    statistics, I'd like to share with you a few stories from working
    people:
         Heather from Cedar Crest, New Mexico told us: ``In
    October, I got very sick with diverticulitis. My doctor put me on bed
    rest for two weeks. While I was out, my boss hounded me to come back,
    but I was way too sick. I told him I would be back as soon as I could.
    I was not receiving sick pay at all. When I did go back to work early,
    he fired me and told me he needed someone he could count on. I worked
    for this man for two years. I was shocked. Sometimes things happen and
    you get sick. How are you to foresee these things?''
         Noel from Bellingham, Washington wrote to us: ``I had to
    work while having bouts of awful bronchitis and walking pneumonia. I
    got no time off at all even when I was in severe pain, coughing up
    phlegm or vomiting. Instead I had to act like I wasn't sick, and keep
    up the same standards and smiling face. * * * I couldn't take unpaid
    days off from work because I couldn't afford to do that. I needed the
    money to pay for things like rent and food. When my quality of work
    suffered substantially from having to go to work while so sick, I was
    fired from my job because according to my then-supervisor, I did not
    create a happy environment for the customers.''
        The H1N1 outbreak has come during a painful recession, and both
    have exacerbated the need for paid sick days. I don't need to tell you
    that the economic crisis has been devastating for working families.
    More than 11.6 million workers have lost their jobs, and millions more
    are underemployed. In October, the unemployment rate was 10.2 percent--
    the highest level since December 1983. The unemployment rate for
    African Americans was 15.7 percent, the rate for Hispanics was 13.1
    percent, and the rate for whites was 9.5 percent in October 2009.\17\
    For many families that once relied on two incomes, this crisis has
    meant managing on one income or no income at all. As a result, families
    are not only losing their economic stability, but their homes: one in
    nine mortgages is delinquent or in foreclosure.\18\
        Five out of six workers (84 percent) say the recession and the
    scarcity of jobs are creating more pressure to show up for work, even
    when they are sick.\19\ Workers are understandably anxious about their
    job security, and many are unable to take any risk that might
    jeopardize their employment--even if they are stricken with H1N1.
    Especially now, when so many workers are suffering terribly, we must
    put in place a minimum labor standard so taking time off for illness
    doesn't lead to financial disaster. Workers have always gotten sick and
    always needed to care for children, family members and older
    relatives--and they have always managed to be productive, responsible
    employees. But without a basic labor standard of paid sick days,
    families' economic security can be at grave risk when illness strikes.
        In addition, as our population ages, more workers are providing
    care for elderly parents. When working people have to take unpaid time
    off to care for a parent, spouse or sibling, they face often-terrible
    financial hardship. More than 34 million caregivers provide assistance
    at the weekly equivalent of a part-time job (more than 21 hours per
    week), and the estimated economic value of this support is roughly
    equal to $375 billion \20\ --a huge contribution to the health and
    well-being of their families. Caregivers contribute more than time; 98
    percent reported spending on average $5,531 a year, or one-tenth of
    their salary, for out-of-pocket expenses.\21\ Yet, many lose wages each
    time they must do something as simple as taking a family member to the
    doctor.
    Businesses Benefit from Paid Sick Days Policies
        Research confirms what working families and responsible employers
    already know: when businesses take care of their workers, they are
    better able to retain them, and when workers have the security of paid
    time off, their commitment, productivity and morale increases, and
    employers reap the benefits of lower turnover and training costs.
    Furthermore, studies show that the costs of losing an employee
    (advertising for, interviewing and training a replacement) is often
    much greater than the cost of providing short-term leave to retain
    existing employees. The average cost of turnover is 25 percent of an
    employee's total annual compensation.\22\
        As mentioned previously, paid sick days policies also help reduce
    the spread of illness in workplaces, schools and child care facilities.
    In this economy, and during this time of a national health emergency,
    businesses cannot afford ``presenteeism,'' which occurs when, rather
    than staying at home, sick employees come to work and infect their co-
    workers, lowering the overall productivity of the workplace.
    ``Presenteeism'' costs our national economy $180 billion annually in
    lost productivity. For employers, this costs an average of $255 per
    employee per year and exceeds the cost of absenteeism.\23\ In addition,
    paid sick days policies help level the playing field and make it easier
    for businesses to compete for the best workers.
        Already, many savvy employers have responded to the H1N1 outbreak
    by expanding or improving their paid sick days policies. For example,
    Medtronic Inc. has reacted by granting all its employees, including
    hourly workers, three additional paid sick days. Best Buy has
    instructed its managers to send employees home if they arrive at work
    sick, and to pay them for the remainder of the day, even if they do not
    have any sick time.\24\ Texas Instruments, Inc. has relaxed its sick
    days policy, allowing workers to take as many days as they need to
    recover, by granting them the option of borrowing against future
    leave.\25\ These businesses and many others know that it is in their
    best interest to make sure that they do not have masses of sick workers
    on the job. They know that paid sick days must be part of their
    operating plans if they are going to keep their doors open and their
    businesses thriving during these difficult economic times when H1N1 flu
    is spreading.
    The Nation Needs Policies that Allow Workers to Meet their Job and
            Family Responsibilities
        Our nation has a proud history of passing laws that help workers in
    times of economic crisis. Social Security and Unemployment Insurance
    became law in 1935; the Fair Labor Standards Act and the National Labor
    Relations Act became law in 1938, all in response to the crisis the
    nation faced during the Great Depression. Working people should not
    have to risk their financial health when they do what all of us agree
    is the right thing--take a few days to recover from contagious illness,
    or care for a family member who needs them. Now is the time to protect
    our communities and put family values to work by adopting policies that
    guarantee a basic workplace standard of paid sick days.
        At present, no state requires private employers to provide paid
    sick days. The cities of San Francisco, the District of Columbia and
    Milwaukee have passed ordinances requiring that private employers
    provide paid sick days. This year, more than 15 cities and states have
    considered paid sick days laws to ensure that this basic labor standard
    becomes a right for all workers. This is a national movement now, and
    we expect it to expand to more than 25 campaigns next year. But illness
    knows no geographic boundaries, and access to paid sick days should not
    depend on where you happen to work. That's why a federal paid sick days
    standard is so badly needed.
        Like the minimum wage, there should be a federal minimum standard
    of paid sick days that protects all employees, with states and
    individual employers given the freedom to go above the federal standard
    as needed to address particular needs of their residents or workers.
        Working people need a basic labor standard of sick time that is:
         Paid;
         Job protected;
         Accessible to workers at their discretion (by notifying
    the employer verbally or in writing);
         Available for workers to use to care for themselves or a
    child or parent; and
         Up to seven days (or 56 working hours).
        These key principles are included in the Healthy Families Act. The
    legislation guarantees workers the right to determine whether they need
    to take a paid sick day, provides strong job protections, and lets
    workers take paid time off to care for a sick child or parent.
        These core principles are supported not only by advocates, but also
    by members of the House of Representatives and the Senate. They are
    reflected not only in the Healthy Families Act, but in proposed
    legislation in more than a dozen states, including California.
        These core principles may never be more important than they are
    during this national H1N1 emergency. To that end, we support emergency
    legislation for the duration of the H1N1 epidemic that contains these
    core principles and addresses the unique circumstance of this H1N1
    emergency.
        Because of the dangers posed by H1N1 and its ability to spread
    quickly in a community, in addition to the principles outlined above,
    we would support legislation to fully protect workers and the public
    health by:
         Enabling workers to take paid sick time during closure of
    a workplace or a child's school or care facility due to a contagious
    illness;
         Covering all sizes of employers and all types of
    employees, so that no workplace or worker is left vulnerable to the
    H1N1 virus; and
         Establishing a Dept. of Labor and Dept. of Health and
    Human Services toll-free telephone call center and website to enable
    workers to report violations, which the government would investigate
    and resolve, working with the employer.
        Such emergency legislation would be effective immediately upon
    passage, and it would sunset in two years.
        Congress should waste no time in passing paid sick days legislation
    so that working people can earn paid time off and help prevent the
    spread of illnesses, without jeopardizing their economic security. This
    year's public health crisis is the H1N1 virus but, in reality, millions
    of working people face the heart-wrenching decision of whether to send
    a feverish child to school and collect a paycheck, or stay home with
    her and lose pay. Or they must choose whether to go to work sick and
    get paid, or stay home to recover and fall behind on the rent.
        Chairman Miller and members of the Committee, I thank you for the
    opportunity to participate in this important discussion, and we look
    forward to working with you to ensure that America's workers have a
    basic right of paid sick days. We sincerely appreciate your efforts in
    recent weeks to highlight this critical issue. Like you, we share the
    desire to promptly pass both emergency and long-term, permanent
    legislation that will protect the public health and is feasible for
    both employers and workers. And we look forward to working with you.
                                    endnotes
        \1\ U.S. Dept. of Health and Human Services, ``About the Flu,''
    http://pandemicflu.gov/individualfamily/about/index.html
        \2\ Centers for Disease Control and Prevention, 2009-2010 Influenza
    Season Week 42 ending October 24, 2009, http://www.cdc.gov/flu/weekly/
        \3\ CDC, 2009 H1N1 Flu U.S. Situation Update, 10/2/09, http://
    www.cdc.gov/h1n1flu/updates/us/.
        \4\ The President's Council of Advisors on Science and Technology.
    ``Report to the President on U.S. Preparations for 2009--H1N1
    Influenza'', 8/7/09, www.whitehouse.gov/assets/documents/PCAST--H1N1--
    Report.pdf
        \5\ New York Times, ``Obama Declares Swine Flu a National
    Emergency'', www.nytimes.com/aponline/2009/10/24/health/AP-US-Obama-
    SwineFlu.html?scp=3&sq=obama%20national%20emergency%20swine%20flu&st=cse
    , 10/24/09.
        \6\ Associated Press, ``Government enlists employers' help to
    contain flu,'' 8/19/09.
        \7\ HHS News Release, 8/19/09, www.hhs.gov/news/press/2009pres/08/
    20090819a.html
        \8\ CDC, Recommendations for the Amount of Time Persons with
    Influenza-Like Illness Should be Away, www.cdc.gov/h1n1flu/guidance/
    exclusion.htm
        \9\ Center for Infectious Disease Research & Policy, Univ. of
    Minn., www.cidrap.umn.edu/cidrap/content/influenza/swineflu/news/
    aug0709schools3.html
        \10\ Vicky Lovell, Institute for Women's Policy Research, Women and
    Paid Sick Days: Crucial for Family Well-Being, 2007.
        \11\ Economic Policy Institute, Minimum Wage Issue Guide, 2007,
    www.epi.org/content.cfm/issueguides--minwage.
        \12\ Vicky Lovell, Institute for Women's Policy Research, No Time
    to be Sick, 2004.
        \13\ CDC, Novel H1N1 Flu: Facts and Figures, www.cdc.gov/h1n1flu/
    surveillanceqa.htm.
        \14\ Kaiser Family Foundation, ``Women, Work and Family Health: A
    Balancing Act,'' Issue Brief, April 2003.
        \15\ Vicky Lovell, Institute for Women's Policy Research, No Time
    to be Sick, 2004.
        \16\ Cases of swine flu higher among city blacks, Hispanics,
    Stephen Smith, Globe Staff, August 18, 2009, http://www.boston.com/
    news/local/massachusetts/articles/2009/08/18/cases--of--swine--flu--
    higher--among--bostons--blacks--hispanics?mode=PF
        \17\ U.S. Bureau of Labor Statistics, Economic News Release,
    Employment Situation Summary, Nov. 6, 2009, http://data.bls.gov/cgibin/
    print.pl/news.release/empsit.nr0.htm
        \18\ Center for American Progress, www.americanprogress.org/issues/
    2009/03/econ--snapshot--0309.html, March 2009
        \19\ Angus Reid Strategies for Mansfield Communications online
    survey of 1,028 workers, conducted 9/10--9/12/09. Margin of error: +/
    -3.1% points.
        \20\ Ari Houser and Mary Jo Gibson, AARP Public Policy Institute,
    ``Valuing the Invaluable: The Economic Value of Family Caregiving, 2008
    Update.''
        \21\ Jane Gross, ``Study Finds Higher Costs for Caregivers of
    Elderly,'' New York Times, 11/19/07.
        \22\ Employment Policy Foundation 2002. ``Employee Turnover--A
    Critical Human Resource Benchmark.'' HR Benchmarks (December 3): 1-5.
        \23\ Ron Goetzal, et al, Health Absence, Disability, and
    Presenteeism Cost Estimates of Certain Physical and Mental Health
    Conditions Affecting U.S. Employers, Journal of Occupational and
    Environmental Medicine, April 2004.
        \24\ Next test: Flu 101, Suzanne Ziegler, Minneapolis Star Tribune,
    September 23, 2009 www.startribune.com/lifestyle/health/
    60463767.html?elr=KArksi8cyaiUo8cyaiUiD3aPc:--Yyc:aUU
        \25\ Sick Time: Employers Gear Up for Swine Flu, Betsy McKay and
    Dana Mattioli, Wall Street Journal, November 2, 2009
        http://online.wsj.com/article/
    SB20001424052748704746304574508110025260366.html
                                     ______

        Chairman Miller. Thank you.
        Thank you very much, all of you, for your testimony. As you
    can see, there is a fair amount of interest on the committee,
    so we are going to have to be brief here, but we will try to
    give everybody an opportunity to ask questions.
        Dr. Schuchat and Dr. Benjamin, I have been looking at this
    legislation. As we drafted this legislation, the idea is that
    when we look at school policies, it seems to be--and workplace
    policies--you are trying to provide some circuit breaker within
    that space to stop the H1N1 from spreading. I mean is that what
    we are trying to do when we close the school or we try to get
    parents to keep their kids at home or have workers go home--
    that is the purpose, the public health purpose here?
        Dr. Schuchat. You know, there is a direct benefit for
    people in an office slowing the spread. I think we learned from
    the spring that closing schools for a week was extremely
    disruptive to communities and society and the children.
        And with a focus on keeping ill people out of the schools
    or out of the workplace, it was a much less disruptive
    approach, but important to reduce the spread to others and give
    people time to heal. But we knew that keeping kids home, even
    for that 3 to 5 days that might be necessary meant a parent
    often needed to stay home with them and had a ripple effect.
        Chairman Miller. So a school policy is a little bit
    dependent upon the parental policy at the workplace.
        Dr. Schuchat. Yes, absolutely.
        Chairman Miller. Yes. Yes.
        Dr. Benjamin?
        Dr. Benjamin. Yes, I would agree with that. They are really
    interdependent. And, you know, we know clearly that you can
    slow the spread of the disease, lots of models that have shown
    that. But if you think about it, it is kind of common sense as
    well.
        Chairman Miller. Mr. Clarke, let me ask you something. For
    the somewhere around 40 to 60 million people who don't have
    paid leave policy, your concern is that for your employers, who
    may have a comparable policy, that they be allowed to use that
    comparable policy in place of this, whether it is called paid
    sick leave or paid time off or whatever combination that is,
    that you don't want to see this as additive to that? You want
    to see this if an employer gives you 7 days of paid time off or
    10 days of paid time off, you could use that. If they allow you
    to borrow from the future, you could do that. You want to stay
    within those policies that your employers have. Is that
    correct?
        Mr. Clarke. Well, primarily, yes, on the paid time off
    argument----
        Chairman Miller. Whether we--yes.
        Mr. Clarke. Yes. And the issue with paid time off is there
    is no day in that bucket called ``sick days.''
        Chairman Miller. No, I understand that.
        Mr. Clarke. Right.
        Chairman Miller. So you want that--I am not asking you to
    endorse the policy. I am not stretching here too far.
        Mr. Clarke. Okay.
        Chairman Miller. You would ask that that be made
    compatible, that that currently, I assume, under the theory of
    paid time off is that the employee can choose the purposes for
    which they want to use that that time--in theory, right?
        Mr. Clarke. Yes.
        Chairman Miller. So you don't want to label those times or
    lay on top of that additional days.
        Mr. Clarke. That is true.
        Chairman Miller. What do we do for the people that there is
    no policy?
        Mr. Clarke. Well, I agree with that first point that, you
    are right, we want these to coordinate well and not overlap,
    and, sir, on the issues with the two bills that are at issue
    here today is that the safe harbor provisions do not accomplish
    that.
        Chairman Miller. Okay.
        Mr. Clarke. So there is a serious issue with that there.
        On your other point, the numbers that are bandied around we
    certainly don't accept. We don't believe they are supported by
    numbers that we collect ourselves.
        Chairman Miller. I know, but the Bureau of Labor Statistics
    collects these, and they are used by all the other
    organizations.
        Mr. Clarke. Exactly. The----
        Chairman Miller. I mean you are taking information in North
    Carolina.
        Mr. Clarke. Well, the reason we don't accept the numbers
    are that those--and I have looked at these studies--often they
    very narrowly define paid leave. They won't get credit for time
    off unless it is called paid sick leave. That is going to take
    a PTO account that has no day called paid sick leave and put
    them in the category of no sick days provided. Those sorts of
    issues exaggerate the problem. I am not saying there is no
    problem.
        Chairman Miller. Let me just--I got to move, because my
    colleagues are going to beat me up here.
        Ms. Ness, on this question of if you have a paid time off
    policy of X number of days, do you have a problem with this
    being compatible with that or that being safe harbored?
        Ms. Ness. No, the Healthy Families Act is crafted so that
    if a work----
        Chairman Miller. Right.
        Ms. Ness [continuing]. If the workplace or employer already
    has in place a policy that would allow people to use 7 days as
    paid sick days, that would be acceptable. They would not have
    to change their policy.
        Chairman Miller. Okay. And then what do we do with those
    who don't have that policy?
        Ms. Ness. Well, that is why we need the Healthy Families
    Act. And, if anything, I think those Bureau of Labor Statistics
    numbers actually underestimate the number of folks who lack
    paid sick days, because they often count in those numbers folks
    who are on the job and the employer generally provides paid
    sick days, but there are job tenure requirements that prevent
    people from being able to use paid sick days for periods of
    months, or up to a year in some cases.
        Chairman Miller. They may exclude part-time workers in that
    policy or it may exclude----
        Ms. Ness. Part-time workers----
        Chairman Miller [continuing]. One level of workers and not
    others?
        Ms. Ness. Part-time workers are the least likely to have
    paid sick days. I think the number is something like 15 percent
    of part-time workers have paid sick days.
        Chairman Miller. Thank you.
        Mrs. McMorris Rodgers?
        Mrs. McMorris Rodgers. Good morning, everyone.
        And I want to thank the chairman and the ranking member for
    holding this hearing.
        I also want to thank all of our witnesses for being here.
        I just wanted to make a few observations before I get to my
    question. Over the last several months we have heard a great
    deal about the H1N1 pandemic, from the shortage of vaccines to
    more than 22 million individuals affected by the disease, 90
    percent of whom are under the age of 65.
        As a mom, there is not an issue that is more important to
    me than ensuring that my son is healthy, but the statistics
    also revealed the potential for serious strains on our nation's
    businesses. It strains employers and employees alike. And for
    the most part, businesses have been one step ahead,
    implementing policies that promote healthy work environments,
    such as telecommuting, job sharing, paid time off. In fact,
    according to the Department of Labor, 83 percent of businesses
    in the private sector offer their employees access to paid
    leave, which can be used for illness or injury or situations
    such as H1N1 flu.
        Despite these innovations, several bills have been
    introduced to respond to the emergency, including more mandates
    on small businesses. In a stagnant economy with unemployment at
    its highest level since 1983 and productivity inching along, we
    need to ensure that the response provides the flexibility that
    employers and employees need, flexibility that ensures
    employees can take care of themselves and their families and
    flexibility that allows businesses to remain productive.
        With this in mind, I would like each of the witnesses to
    comment. What does mandated paid sick leave offer share what I
    that a flexible workplace program doesn't? Shouldn't both
    employers and employees decide what is best for them, not
    Congress?
        Dr. Schuchat. As a public health expert, what our goal is
    is to make it easy for employees to do the right thing, the
    healthy thing for them and the best thing for the workplace.
    And so our focus has been to look at the evidence and determine
    what is the best thing.
        And we have found that staying home for 24 hours after you
    are sick with the flu, after the fever has gone, makes the most
    sense. It is a balance of making sure you are better and
    reducing the chance you are going to infect other people. And
    so whatever will make it easy for people to do the right thing
    is really what we are promoting. Thank you.
        Dr. Benjamin. I think the idea of having flexible policies
    is great, as long as there are not barriers. In other words the
    employee gets to say, ``I am the one that is sick,'' you don't
    have to get permission to stay home, and that the processes to
    verify your illness are reasonable. In my job we allow people
    to be out for 3 days before even beginning to discuss whether
    or not they need to bring a doctor's note in, for example.
        Mrs. McMorris Rodgers. Okay, okay. Good. Thanks.
        Mr. Clarke. Well, to respond to your question, I certainly
    come at this from a glass is close to full perspective, and so
    when I hear mandates and read the mandates of these two bills,
    I see four things. I see that mandates would hurt employers
    that have good and flexible benefits and hurt those employees
    that enjoy that flexibility, particularly in the PTO
    circumstance.
        I believe they hurt employees who would like to use those
    days for other purposes. I believe that it hurts small
    employers with costs that they may not be able to bear. We are
    talking about 3 percent of payroll here on this seven-day
    mandate.
        And I believe it hurts job creation with small employers. I
    don't think we can overlook the fact that as it gets more
    expensive to hire and to retain, you get less hiring and
    retention.
        Mrs. McMorris Rodgers. Okay. Thank you.
        Ms. Ness. I think that policies that afford workers the
    flexibility to use the time as paid sick days are terrific, and
    the Healthy Families Act is drafted in a way to allow those
    policies to stand.
        I think the numbers, though, speak for themselves. Too many
    workers--we are talking millions of workers--don't have that
    kind of flexibility. And I would argue that it is more costly
    to employers not to provide this leave than it is to provide
    it.
        And again, I am coming fresh from this event releasing this
    so-called ``Raising the Global Floor,'' which looked at the 190
    countries in the world that are part of the U.N. And of those,
    163 provide paid sick days. The U.S. is among those that don't.
    Of the 15 most economically competitive nations in the world,
    the U.S. is the only one that does not provide paid sick days.
    That book, after 8 years of research, does a very, very good
    job of showing that these kinds of policies do not negatively
    impact economic competitiveness or job creation.
        Mrs. McMorris Rodgers. Well, I thank everyone for their
    comments. I just believe as much as we can focus on flexibility
    for both employers and employees, that it is a win-win. And we
    need to be encouraging those policies that make it possible,
    that will keep our businesses competitive and make sure that
    employees have a job, too.
        Chairman Miller. Thank you.
        Mr. Kildee?
        Mr. Kildee. Thank you, Mr. Chairman.
        Let me address this to the panel, and any of you may
    answer, if you can. Has there been any study on the difference
    in the cost of having the sick continue to come to work with
    their accompanying inefficiency and the possibility of
    infecting others or staying away from work while recuperating?
    Has there been any study at all indicating the financial or
    fiscal aspects of doing one or the other?
        Dr. Benjamin, do you have any comment on that?
        Dr. Benjamin. I am not aware of such a study, but I am not
    sure you can get such a study through an institution or review
    board.
        Mr. Kildee. Okay.
        Dr. Benjamin. I just remind you that in a small percentage
    of cases, influenza is a fatal disease, so the cost certainly
    in terms of dollars is interesting, but the cost in terms of
    human terms is tragic.
        Mr. Kildee. Right. We recognize that as more than a fiscal
    thing, but even on that alone, there might be some measurable
    way of finding whether staying at home and not infecting others
    or coming to work with your inefficiency and infecting others,
    that might be even a fiscal----
        Doctor?
        Dr. Schuchat. Yes, there have been studies of the economic
    toll of influenza that have looked at, you know, the loss of
    work, the loss of productivity, the seeking medical care, and
    so forth. And it is many, many billions of dollars that is lost
    through the annual seasonal flu. A pandemic would then cause a
    lot more economic loss. So I am not thinking of a particular
    study that added on that the cost of a few days off, but
    certainly, the business loss of influenza substantial.
        Mr. Kildee. This is a corollary of that. Last Saturday I
    went through the schedule of the week and saw we were having
    this hearing, and then went to Mass on Sunday. And the priest
    is a pretty good businessman, too, plus a very good priest, and
    he said, ``Listen, I hear sneezing and hacking and coughing out
    there. Let me say this. First of all, if you are doing that,
    don't take the common cup. Don't shake ``peace be with you''
    with your neighbor after you, you know, sneeze into your hand.
    And why don't you stay at home? Don't come to Mass. Miss Mass.
    That is the loving thing to do, not to come to Mass. Stay home.
    No matter what they told you in the third grade, stay home.''
        So I mean we have to be realistic. There is a problem you
    cause socially when you bring your infection with you into
    work, and while there are moral aspects to this also, so
    morally it is better to stay at home and miss Mass then go to
    Mass and spread the influenza, but there is, I am sure, a
    fiscal measure there that it would be interesting to study. But
    I will leave it at that and thank you very much.
        And thank you, Mr. Chairman.
        Chairman Miller. Mr. Roe?
        Mr. Roe. Thank you.
        Just for my good friend about Mass, I usually do a cough
    count during silent prayer at church, and when it is too high,
    I try to get out of there, if I can.
        I guess I have unique perspective of all this, being a
    physician and also running a small medical practice. In our
    practice we do have personal days, which you were talking
    about, so our folks can choose whatever they want to use them
    for. It is not specifically labeled. And I hate to lose that
    flexibility. They are able to use them if they are ill or if
    they have something with their child at school that they want
    to go to or anything they want to use it for. I think that
    would be a step back.
        As Congresswoman McMorris Rodgers just said, small
    businesses are struggling right now, and what I would do to
    encourage--and just a comment from you all--to encourage small
    businesses is to look for a tax break for those that would
    provide that, because right now, if I can get up and go to my
    medical practice, nothing happened. There was no revenue
    produced.
        And in all due respect, Dr. Benjamin, you have a certain
    amount that is appropriated that you manage each year. In a
    small business they have no revenue until they produce a
    service or goods. And when those goods and services are
    produced, then they have revenue to pay out. And when they lose
    that, through whether it is illness or injury, so a business is
    motivated to keep healthy workers and to keep them on. We all
    know that. I mean I know from my own practice that I want
    educated, healthy people.
        And certainly as you pointed out, the turnover is very
    costly, whether it is a police department or fire department or
    medical office where you have to retrain people. So I think if
    we look at this, just to comment, and certainly, Mr. Clarke,
    you on a tax break for someone to encourage them to do that as
    opposed to a penalty.
        Mr. Clarke. Certainly. If I was asked about alternatives to
    either the HFA or EICA, it would be to look at things like
    that. It would be to look at incentives for smaller employers,
    particularly those employers where the lack of paid sick time
    may be more percentage-wise evident that an incentive based
    system would be preferable. I would certainly agree with that.
        Dr. Benjamin. Let me just step and push back a little bit.
    Actually, you know, even though APHA is a nonprofit, we are
    really a business. We have about a $16 million revenue stream,
    and we publish the ``American Journal of Public Health,'' and
    we have a small book publishing company.
        But let me revert back to my ER doc days. When I was an
    emergency physician, which is how I spent most of my clinical
    days, if I didn't work, I didn't get paid. And we have millions
    of practitioners just like you. And when you are practicing, if
    you didn't have a partner, your business really came to a stop.
    So I personally have some sensitivity to the concept of not
    having paid sick leaves.
        Now, you know, as you know, that meant I worked more shifts
    when I came back. But many people in our country don't have
    that option to be able to do that, and that is why I am a
    strong supporter of paid sick leave.
        Mr. Roe. Would you think about a tax break for small
    businesses that are struggling right now instead of another
    mandate to them to provide a benefit they don't have the
    revenue for? Would you look at that?
        Dr. Benjamin. Well, I think that there are many innovative
    ways for Congress to figure out how to fund this and support
    and incentivize businesses, you know, to do that. You know, I
    am certainly not a tax expert. But if it would serve that
    principle--in other words, allow businesses to be flexible,
    offer the benefit, the real issue, as you know, is how do you
    pay for it?
        Mr. Roe. I think one of the--exactly--I think one of the
    things, too, is to not take that flexibility away from our
    employees, is that they are able to pick. I mean they are sick,
    they can stay out. You don't want somebody with the flu at work
    and infecting everybody else at work. That is just common
    sense, as everybody knows that.
        But that person should--if they want to use their personal
    day for that or need to use their personal day for that, they
    can. Or if they need to use their personal day to be with a
    sick parent in a hospital or a child's play at school, that is
    what I would like to see happen.
        Dr. Benjamin. I don't think anyone is disagreeing with the
    flexibility issue, you know, as long as the barriers--or that
    the system is constructed in such a way that it functionally
    looks like sick leave, acts like sick leave, so that it is
    accessible, truly accessible to the employee. I don't think
    anyone would disagree with you, sir.
        Mr. Roe. I want to thank the panel.
        It is an excellent panel, Mr. Chairman, you have assembled
    today. Thank you.
        Chairman Miller. Thank you.
        Mr. Andrews?
        Mr. Andrews. Thank you, Mr. Chairman.
        Mr. Clarke, in looking at H.R. 3991, the Emergency
    Influenza Containment Act, I appreciate the fact I think you
    have made some very constructive suggestions as to how some of
    the definitions might be tightened up, but I want to come back
    to the core of that legislative proposal.
        If a person went to work today and was coughing and
    sneezing, and their immediate supervisor with authority over
    them said, ``I am very concerned that you have H1N1. Go home.
    Come back in 5 days, and we are going to dock your pay for the
    next 5 days,'' do you think that the employer should be allowed
    to do that?
        Mr. Clarke. Well, I will answer your question, because I
    think people should answer questions that are put to them. Do I
    think they should be allowed? Yes. Do I think it is good
    policy? No. Do I think it happens very often? No. What I see
    happening particularly in this H1N1 pandemic is that employers
    are even addressing issues that neither of these bills address.
    That is, when someone is out of paid sick leave, they are
    allowing them to take more.
        Mr. Andrews. Well, I understand that. If I may, so someone
    is going to bear the cost of that 5 days missed work. You think
    it should be the employee, not the employer, right?
        Mr. Clarke. I do not think it should be the employee, but
    do I think it is a matter of federal law to prevent that
    result? No.
        Mr. Andrews. Well, what other way could we prevent that
    result?
        Mr. Clarke. Well, it is already prevented by the
    marketplace. There is such a high percentage of paid sick
    leave, vacation, personal days, other types of time off.
        Mr. Andrews. But what about for the 39 percent of private-
    sector employees who don't have that protection by the
    marketplace? What about them? Do you think they should bear
    this cost, rather than the employer?
        Mr. Clarke. Well, you know, this whole issue--and I am
    always interested in how this issue is framed--it is really not
    an all or nothing issue. You know, all people who are sick
    don't stay home. All people who----
        Mr. Andrews. No, no, I understand that, but in my
    hypothetical, this is the case, because the bill doesn't say
    that everybody gets this paid leave.
        Mr. Clarke. Right.
        Mr. Andrews. It says if your employer instructs you to,
    directs you to go home, you get the paid leave. So under these
    facts, this is a situation where a person has been told that
    they have no choice but to go home and be docked the 5 days'
    worth of pay. You think that the employee should bear that
    cost.
        Mr. Clarke. I do not think that employee should bear that
    cost----
        Mr. Andrews. So what is the alternative?
        Mr. Clarke. My answer is I don't think it should be a
    matter of federal law to prevent that result in isolated
    situations.
        Mr. Andrews. But how should we prevent it? How should we
    prevent it?
        Mr. Clarke. Well, you prevent it in ways that are
    creatively prevented at the workplace now. I mentioned a very
    large food processor--you would recognize their name--that
    provides no paid sick leave. Instead, they are providing 6
    months of short-term disability paid leave in the instance of
    the medium term illness.
        Mr. Andrews. But do you think that is typical of the 39
    percent of private-sector employees who don't have this
    protection, or atypical?
        Mr. Clarke. No, I think that is an atypical example, but I
    think it is typical to have creative results.
        Mr. Andrews. But what about the more typical example, then,
    where an employer doesn't offer that sort of cafeteria plan of
    leave? How should we avoid this cost being imposed on the
    employee?
        Mr. Clarke. All right, well, on some level, again, to
    answer your question and to be upfront with you, on some level,
    the only way to have no example like that occur is to get very,
    very specific and mandatory on all levels of leave. And I doubt
    that as a country that we want to do that.
        Mr. Andrews. Well, but of course, this isn't about all
    levels of leave. This is about this condition where a person
    has been directed to miss work and to be docked their pay,
    right? This is not about universal paid leave. This is about a
    very specific fact pattern, where the employer holds the
    authority to tell someone they have to miss this time off.
        And, you know, the cost is borne by someone, right? There
    are three choices. It can be borne by the taxpayers. It can be
    borne by the employer or borne by the employee.
        Mr. Clarke. Right.
        Mr. Andrews. Do you think it should be borne by the
    employee?
        Mr. Clarke. I don't think it should be. My answer when I
    said yes was as to the federal mandate to cure it.
        Mr. Andrews. But can you give us--I understand that, but
    can you tell me how we can avoid the employee bearing that
    cost, if we don't have a law that says this?
        Mr. Clarke. Well, the creative ways that we discussed, I
    think, a little bit earlier around incentives, around even
    perhaps, I think, in HFA the bill has a study provision. Maybe
    let us do that study before the bill was passed and find out
    the true scope of the problem, find out really how many
    examples there are like this.
        Mr. Andrews. I understand it. I think you and I would both
    agree that while people are waiting for this study to get done,
    and they miss 5 days' work and don't make their rent payment or
    can't buy their groceries, that is not very satisfactory.
        I don't want to see this cost imposed on small businesses
    arbitrarily, but this is a situation where the employer has
    made an election to say, ``I want you--I am telling you to go
    home. I am telling you to go home. You can't come to work
    today.'' And I don't think that is fair.
        Chairman Miller. Mr. Thompson?
        Mr. Thompson. Thank you, Mr. Chairman. Mr. Chairman, I
    would like to ask unanimous consent to submit a letter for the
    record.
        [The information follows:]

                                    ------

        Mr. Thompson. As a member of the House Small Business
    Committee in addition to my responsibilities here in Education
    and Labor, I have an additional responsibility to do my best to
    ensure the proposals we are looking at today take into
    consideration the needs of our nation's small businesses who
    employ so many Americans and the American workforce.
        On September 9, 2009, the Committee on Small Business had a
    hearing on the impact of H1N1 influenza virus on small firms,
    and we learned, as suspected, that small business owners are
    making strides to keep workplaces healthy during the flu
    season. The witnesses testified that they are crafting flexible
    work and employee schedules, as Mr. Clarke made reference to
    some of those that he has observed, that--and are doing their
    best to address the H1N1 outbreak.
        An employee should have the freedom to negotiate benefit
    structure that works best for them. And some employers who
    currently offer paid vacation may not be able to afford to do
    so if they are required to offer paid H1N1 leave. At a time
    when our nation's unemployment rate is 10.2 percent, we should
    help small businesses increase employment.
        This letter was also signed by the ranking member of the
    Small Business Committee and addresses some of these issues. As
    the committee moves forward, we need to take into account small
    businesses' unique needs and ensure that we don't create
    policies where, however well intentioned, they may have an
    adverse effect on our nation's economic engine.
        I appreciate the panel coming today. I had some specific
    questions.
        Mr. Clarke, in your testimony you mentioned a number of
    unanswered questions regarding the Emergency Influenza
    Containment Act. What in your view are the most important of
    those unanswered questions?
        Mr. Clarke. Well, they are largely definitional. What does
    it mean to suggest or direct? I mean this is what happens in
    reality in workplaces. People have conversations. People
    typically are friends. People are concerned about each other.
    And his supervisor has a conversation with someone who appears
    to be ill or getting ill. Is that suggesting or directing?
        The significant problem, though, is just like it is with
    HFA, is what is the impact on the paid time off plans? And what
    is going to be the impact of the mandate on employer
    flexibility, because just like HFA, there is a specific safe
    harbor there saying if you provide this mandated benefit in
    another way, it is not additive?
        But that mandated benefit has so many strings and issues in
    it that most employers would not be in compliance with that
    today, so it would either be additive or it would have to
    replace an existing benefit.
        Small employers, if I may say, small employers provide paid
    sick leave. The surveys, they show up as providing paid sick
    leave as much, really, as larger employers do. The difference
    is that small employers tend as a group not to have defined
    policies on every issue, or really even on any issue in some
    cases.
        So some of them have concerns about handbooks and policy
    manuals and things like that, and they are very much more in
    the moment. And that really is to employees' benefit during a
    pandemic like this that is recognized nationally, that has got
    very good science behind it, that is in the news, and really in
    our experience encourages small employers to do more than you
    might find in a written and sort of hard coded policy at a
    medium or larger size site.
        Mr. Thompson. The supporters of another bill that we have
    heard discussed this morning, the Healthy Families Act, suggest
    that the bill is targeted at those employers who do not offer
    paid sick leave and claim that employers who do not offer paid
    sick leave currently would not be affected by the legislation.
    Is that how you read the bill? And if not, how would you read
    it?
        Mr. Clarke. I read the bill's mandate to say that if you
    provide these sick days in this way with these conditions with
    these carryovers with these prerogatives with these notice
    provisions with all these particular details, and you also
    provide 7 days otherwise, you don't have to add it.
        However, I really cannot think in my mind of an employer
    that has a sick pay plan that meets the current safe harbor. So
    an employer that is going to have to open up their plan to try
    to comply with that safe harbor is going to have to--he will, I
    believe, open up a broad look at their paid time off policies
    and try to balance the cost with what is being added in their
    minds.
        Mr. Thompson. Okay. Thank you.
        I yield back, Mr. Chairman.
        Chairman Miller. Mr. Hare?
        Mr. Hare. Thank you, Mr. Chairman.
        I would like to direct the committee's attention to written
    testimony that was submitted to the committee by Melanie Disher
    from my home state of Illinois. And Melanie is a food service
    worker at Plainfield North High School and is an employee of
    Sodexo, a private company contracted by the school to provide
    cafeteria services.
        She is a shining example of someone who can't afford to
    take sick days and has to work while ill, potentially exposing
    children and other staff members to germs. Melanie's situation
    is indicative of the problem all across the country, especially
    among those who are considered low-wage or part-time workers.
    Workers deserve the resources necessary to not only protect
    their health, but the health of their co-workers and as in
    Melanie's case, schoolchildren.
        The Centers for Disease Control recommends that individuals
    experiencing flu-like symptoms stay home, but for too many
    workers staying at home means the loss of vital income, marks
    against their work record, or other negative implications.
    Having paid sick leave not only ensures that sick individuals
    can recover, but also stems the incidence of infection,
    protecting the safety of at-risk populations.
        With that, Mr. Clarke, the CDC estimates that sick workers
    can infect one in 10 of their colleagues. Doesn't this fact
    clearly point to the need to ensure that workers are guaranteed
    paid sick leave, especially if the people they interact with
    are part of an at-risk group, such as children? I would think
    that if you had young kids in school and you knew that the food
    service workers were going there ill and that your child would
    be exposed to this, I think that would be a pretty scary
    situation as a parent.
        Mr. Clarke. Yes, I have to certainly sympathize with that
    last comment as a parent and as a fellow human being on this
    planet, but my response is that the glass is over 80 percent
    full, and that is going to be a fairly rare circumstance or one
    that is occurring primarily in part-time employment.
        Part-time employment typically does in this country not
    carry very many pay benefits. About half the employers provide
    a paid benefit in the part-time environment. Part-time is very
    common in food service and hospitality. I mean it is likely--I
    don't know--that that individual is part-time. And I would hope
    that her employer would give her and provide her a paid benefit
    proportionate to the hours that she works.
        Mr. Hare. Just two things, Mr. Clarke. You know, I have
    heard you mention 80 percent full several times in your
    testimony today, and I appreciate your being here, but as
    Chairman Andrews pointed out, what about these 39 percent of
    people who don't have it? And we are in a recession. We have
    got 10.2 percent of people who aren't working. Many of these
    are single parents.
        Mr. Clarke. Right.
        Mr. Hare. They are going to work. They are sick. They are
    in food service. They may be serving us. I remember we had a
    hearing on this before, and I asked the panel across the board
    and said, ``How many of you would order a tenderloin if you
    knew that the person serving it to you was coughing and
    sneezing all over the place?'' And nobody raised their hand.
        My concern is for these people who don't have it. And what
    do we do to give it? It would just seem to me that especially
    if the employer is telling them, ``Look, you are coughing and I
    don't like the way--you have got to go home.'' And they should.
    I don't want them, you know, want them infecting people.
        But they are not going to get anything out of this. And for
    many of them, that is the difference between being able to pay
    for health care, being able to put groceries, being able to buy
    prescriptions to get better. I just don't know what we would do
    with those 39 percent of people. And that is an awful lot of
    people out there.
        Mr. Clarke. Right, and I certainly appreciate that concern.
    I think the answer really goes to what pool there you are
    looking at when you come up with that percentage number. I am
    not going to say there is no one in this country that works for
    a living that has no paid time off and might suffer one of the
    consequences that you or the other congressmen mentioned. My
    point is that the pool is much, much smaller than those
    statistics present. And let me give an example of why that is.
        Someone mentioned that 93 percent figure that the Bureau of
    Labor Statistics from the USDOL published in February of 2009,
    that 93 percent of full-time employees receive paid sick leave.
    Now, they got to that number by accumulating vacation, sick,
    personal and similar kinds of paid leave. And they accumulated
    that and called it all sick leave.
        If you want to do a study that says I am only going to
    count you as receiving sick leave if you have a piece of paper
    in front of you that says you get X days of sick leave, you are
    going to increase the pool of people who do not have paid sick
    leave, in your mind. I mean there is a fundamental issue there.
    I don't know where the exact number is. You know, these things
    vary within ranges. But there are two fundamental different
    foundations there in those surveys.
        Mr. Hare. Well, I will just conclude by saying this. In the
    factory that I used to work at, which was an organized factory,
    there was no paid sick leave. If you are sick, and most of the
    time when I was--I worked there 13 years--I just came to work,
    because I had a couple of young kids that I had to provide for.
    And when you are working piecework, you are pushing all day
    long just trying to make ends meet.
        And we couldn't borrow from any account. We couldn't borrow
    from our vacation. We couldn't borrow. And we had no personal
    leave, so, you know, I have been there and done that, and I
    just hope that this bill passes, because for those people who
    don't have it, we clearly have to provide it. And I thank you.
        Thank you, Mr. Chairman.
        Chairman Miller. Thank you.
        Mr. Courtney? Mr. Courtney, might I ask you to yield for 30
    seconds?
        Mr. Courtney. I would be happy to.
        Chairman Miller. That 93 percent figure, Mr. Clarke, was
    manufacturing employers, right?
        Mr. Clarke. No, Mr. Chairman, that was overall. Actually,
    manufacturing was 96 percent.
        Chairman Miller. It was overall. Okay.
        Mr. Clarke. Manufacturing had the highest percentage of
    paid sick leave of any other sector in the country.
        Chairman Miller. Check the record on that.
        Okay. Mr. Courtney?
        Mr. Courtney. Thank you, Mr. Chairman.
        Ms. Ness, I would like to sort of review with you a little
    bit the differences between H.R. 3991 and the Healthy Families
    Act, because I mean one of the concerns I frankly have about
    3991 is that the trigger for sick pay under that proposal is
    really an employer decision. In other words, the employee, the
    way I read it, almost has to present himself or herself at the
    workplace, and then the employer makes the decision that,
    ``Okay. It is time for you to go home.''
        I mean there is really no scenario in this language that
    really started that somebody wakes up that morning and just
    says, you know, ``I don't think I should go to work.'' To
    comply with Dr. Schuchat's, you know, goal, which is to make it
    easy for the employee, I am a little concerned at just about
    the way this is structured, and I don't know if you want to
    comment on that.
        Dr. Schuchat. Yes, we share that concern. And I see that as
    a starting point that we need to improve on. I think there are
    some very core principles to make emergency legislation
    meaningful. I think it has to be job protected. It has to be
    paid. And I think it has to be at the employee's discretion.
        The employee has to be able to call in and say, ``I am too
    sick to come to work.'' Otherwise, we are defeating the purpose
    of trying to reduce the amount of contagion spread by sick
    workers going into the workplace. We also believe that the
    leave needs to be usable not just for the person who is ill,
    but also if that person is taking care of an ill family member,
    like a sick child that needs to be kept home from school.
        Mr. Courtney. I mean again, as--and I am also just sort of
    trying to visualize other scenarios where if somebody is at
    work coughing--they are in a factory floor or office where
    there are other people around--that person gets sent home, and
    then the rest of the staff is sitting there thinking, ``Well, I
    was there when that person was coughing.'' The structure of
    this, really, I just find it somewhat questionable.
        Dr. Schuchat. It becomes even more problematic when you
    think about the kinds of workers that we are talking about, who
    tend not to have paid leave. They are the folks who are
    interacting with the public on a regular basis, so a lot of
    these are childcare workers. They are nursing home workers.
    They are food service workers. They are workers in public
    accommodations, in hotels and retail. So they are the very
    folks who are interacting the most with the public, who you
    really don't want to have coming to work sick.
        Mr. Courtney. Whereas the Healthy Families Act, I mean,
    really again doesn't tie the who decides to the employer, it
    creates just basically several more broad-based sick leave
    benefits, which allows the worker with a doctor's note or
    whatever to qualify for the sick leave. And, you know, again, I
    am not trying to be proud, you know, difficult here, but it
    just seems like that provides a path that achieves what the
    public health officials are saying is really the goal here,
    which is to make it easier for workers to not spread H1N1.
        Ms. Ness. Correct. And we look forward to working with the
    committee to build those core principles into any emergency
    legislation that would go forward.
        Mr. Courtney. I don't know if, Dr. Schuchat or Dr.
    Benjamin, you want to comment on this sort of employer trigger
    that is in 3991.
        Dr. Schuchat. I mean from a public health perspective the
    best thing is not to go to work or school when you are sick, to
    be able to not do that. We have actually also recommended that
    if you are not really ill, we don't want you to actually go to
    a doctor's just to get a doctor's note, because that can clog
    up the health care system.
        And so some of the outreach that has been done to the
    business community has been about, you know, flexibility about
    that, so that we don't overburden the health care system in
    order to--you know, for people who wouldn't otherwise have to
    go there.
        Mr. Courtney. Dr. Benjamin?
        Dr. Benjamin. I will just agree with Ms. Ness' perspective
    on that. I think that is accurate. Do you want to encourage
    people not to come and work? Incentives should be to stay home
    when you are sick.
        Mr. Courtney. All right. Thank you.
        And as far as, I guess, Ms. Ness, if someone is home and is
    able to work from home with, you know, telecommuting, I mean
    there really should be some accommodation, hopefully. I mean we
    are living in a world where that is becoming more common. I
    mean I don't know if you have any comments about whether that
    should be incorporated.
        Ms. Ness. Well, I think we are all for flexibility. I think
    it has its limitations when you are talking about workers, for
    example, who are hotel workers, for example, or somebody who is
    a short order cook or--I mean there are some jobs that you
    can't do flexibly from home. So certainly, we are very
    enthusiastic supporters of flexibility, but there are millions
    of workers for whom flexibility is not an option.
        Mr. Courtney. Thank you.
        I yield back.
        Chairman Miller. Mrs. Biggert?
        Mrs. Biggert. Thank you, Mr. Chairman.
        Rear Admiral Schuchat, I have a couple of questions about
    the vaccines and particularly the H1N1. I know that you--in
    your testimony you said that the vaccine is targeted, you know,
    the available doses, in priorities such as, you know, pregnant
    women, children and people that care for children.
        But it seems like what has happened, and we had a change in
    how the vaccines are delivered, and just going around and
    seeing so many places where they say they have the vaccine, and
    then you will see these huge, huge, long lines of people
    waiting for several hours and, you know, holding their
    children. And it didn't seem to be the best way that should be
    given out, particularly even getting the people together that
    have the potential of being sick.
        How was the policy determined how they would be
    distributed? And did it work?
        Dr. Schuchat. The recommendations for who ought to be
    vaccinated when supplies are relatively scarce came from CDC's
    advisory committee on immunization practices. It is a science-
    based committee, and they came up with these five that ought to
    be vaccinated before others.
        The vaccine is coming from five different manufacturers,
    and it is going to the central distributor that CDC manages.
    States and large cities order vaccine proportionate to their
    population and have it shipped from that central distributor to
    the sites that they designate. There is state and local
    authority in directing those sources.
        We know that 34 states have already carried out school
    located clinics to reach large numbers of children, that
    virtually all states have directed doses to hospitals for
    health care workers and high-risk populations. Most states have
    sent some alloquets to providers' offices to reach the high-
    risk people there. Some have also started, I believe--I think
    14 states have started to provide some doses to the retail
    pharmacy venues that can reach additional people. Some have
    gone to employer clinics.
        The states and the cities are directing the vaccine doses
    in the ways that they believe are the most effective to reach
    the priority groups. We know that the vast majority of vaccine
    has gone for the high-risk population, but that they have been
    doing mass clinics.
        I think everyone wishes there weren't long lines, that it
    were easier for people, particularly pregnant women, parents of
    young children, to easily get their loved ones vaccinated. And
    with a limited supply, it has been challenging, but it is
    getting better each day.
        Mrs. Biggert. Well, did your advisory committee give any
    information on how they would have given this out? It seems to
    me that if you have got different groups and priorities, that
    the way to do it would have been through the pediatrician or a
    doctor's office. And as I recall, that usually seems to be the
    starting point for distribution. And was this a change from all
    the states? Or how does that happen?
        Dr. Schuchat. The doctors' offices are the key component.
    One of the challenging things about vaccinating during a
    pandemic is how busy the doctors' offices have been,
    particularly the pediatricians' offices. We know that in the
    spring in New York City, doctors, pediatricians, were actually
    having to cancel their well child visits, which is where they
    give out vaccines. So this was much more of a flexible
    approach, often trying to find, you know, lots of doctors'
    offices, but also as a venue.
        One critical piece is that doctors who care for pregnant
    women rarely get vaccines, and we have really had to push hard
    to get obstetricians to sign up for vaccine. In some states it
    has been a great response. In others it has been a little
    trickier. So local health departments, hospitals and others are
    really pitching in where the provider community might not have
    been able to fill the need.
        But certainly, providers are among the large numbers that
    are getting vaccine and using it. Of course, some people don't
    have providers, and so there are these other venues so that
    they would be able to be vaccinated.
        Mrs. Biggert. Well, it seems that there has been short
    supply. Would you be able to meet the need for this before
    everyone gets sick?
        Dr. Schuchat. The demand has been tremendous for vaccine.
    This differs from some other countries, where the public is a
    little more skeptical of the need for vaccine and the value of
    it. But demand has been very high. Supply is getting better,
    but it is not there yet, and our goal every day is to use the
    supply that is there as effectively as possible.
        We hope that in the weeks ahead it is going to get better,
    but demand is very high right now, and it is difficult to say
    when the lines will be shorter, when it would just be easier
    for people who have been recommended to be vaccinated, to be
    able to be.
        Mrs. Biggert. Well, if you have it to do over again, would
    there be any difference in the way that you would approach the
    distribution?
        Dr. Schuchat. I think that the central distribution and the
    state and local authority have been very important in us
    reaching as many people as we have reached. I think doing it
    over again, the messaging and expectation setting could have
    been much better, that I think people thought we would be in
    much better shape by now and are very frustrated. And I wish
    that we had communicated in a way that made it easier for
    people to know that it was going to be tough.
        Mrs. Biggert. Thank you.
        Yield back.
        Chairman Miller. Mr. Tonko?
        Mr. Tonko. Thank you, Mr. Chair.
        Ms. Ness, you in your testimony cited the fact that several
    companies have expanded their policies, their sick leave
    policies in response to the H1N1 virus. And then I think it was
    three companies----
        Chairman Miller. Mr. Tonko, could you pull your microphone
    up to you a little bit?
        Mr. Tonko. Three companies that you mentioned in the
    testimony had done so. Do you know how these companies have
    fared in comparison to other companies in terms of controlling
    or keeping their workforce healthy?
        Ms. Ness. I don't have data on how they have fared, and I
    think those actions are relatively recent. So we would be happy
    to try to get back to you on that, but I think it points out
    the need for us to take action.
        In such a tight and competitive economic environment, I
    think leveling the playing field here and encouraging all
    employers to do the right thing would probably make it easier
    in this environment for employers to all take the steps that we
    need them to take right now.
        Mr. Tonko. And, Dr. Schuchat, you talked about bringing
    together CDC and the Department of Education so as to allow for
    state and local agencies to calibrate their message and provide
    guidance. Would you recommend similar systems be available to
    tailor, perhaps, the needs in our business community for their
    workforces?
        Dr. Schuchat. You know, we have been working with business
    as well. The public health connections with the Department of
    Commerce, Department of Labor, and so forth have been
    extensive, and also Homeland Security, about continuity of
    business. We have also done a lot of outreach with the U.S.
    Chamber of Commerce, the Business Group on Health and others.
        I think critical for a pandemic response is good
    communication and partnership. And the partnership with
    education has been incredible. It has really been extremely
    strong. I think the education sector felt that pandemic the
    strongest in the spring and all through the summer worked very
    hard to ready the schools. It has been a great success, because
    the disruption to the school system has been much lower. USDA
    stepped up and made sure that there were school lunches for
    some of the kids where schools did have to be closed.
        We have done much better this fall than we did in the
    spring responding, and with the business community I think we
    have been trying, but we could always do better.
        Mr. Tonko. Where do you think the improvements can come
    with the business community? I hear this, you know, summer
    outcome with the school systems. Where could we improve with
    the business community?
        Dr. Schuchat. You know, I think one feature that has been
    nice with education has been our tracking system. We have been
    monitoring school dismissals and really had a metric of the
    success of the interventions, that we had the new guidance, and
    so forth.
        It may be that we don't yet have the right metrics to
    understand how we are doing with business, but it is also a
    less centralized universe, you know, in terms of the
    partnership. So I am sure that this committee would have good
    ideas of about how we could strengthen the work, but we have
    been paying a lot of attention to it.
        Mr. Tonko. Then, Mr. Clarke, with the paid time off
    situation and the flexibility factor that you keep mentioning,
    while that may seem to be a workable solution for employees and
    employers, what about situations where the available time is
    used too--and then, for instance, someone could have used that
    time for a vacation earlier this year?
        What happens when, from a public health policy perspective,
    when an individual is sick at the workplace, is required to go
    home, or is ordered to go home with no available time, given
    that flexibility?
        Mr. Clarke. Right. No, I really appreciate that point, and
    I think that is the point that we miss in most of this
    discussion. We missed it in the HFA. We miss it in the EICA. We
    don't address what happens when you didn't have basic plan that
    did meet the safe harbor. You are now out of sick time. What
    happens next?
        And what I got to complement the surgeon general's office,
    the CDC, what has happened in the employer community is there
    is such a deep awareness of what is going on with this
    pandemic, with this flu, that so many employers are thinking
    about just exactly what you asked and doing things like I
    mentioned--that is, adding extra days to the bank or coming up
    with other ways--``Look, come in on another day, a day you
    weren't normally scheduled. Come in then and make up that time.
    Let us get you paid that way''--all sorts of creative ways
    either just to give the time, the paid time to them, or to have
    a way to make it up.
        But those issues are being addressed in the marketplace,
    are really not addressed in these two bills.
        Mr. Tonko. And if the worker is absent from work or ordered
    to be absent from work, with that lack of flexibility remaining
    because time has been used, the economics of it, who--you know,
    are you suggesting that the business would pay them if they
    came in to make up that time?
        Mr. Clarke. I am suggesting that many are telling me that
    is their current plan. I don't know, certainly, the percentage
    exactly that will do that. What I can tell you is there is a
    growing awareness of that need, a growing awareness of the
    medical facts, a growing awareness of the fact that this is a
    very contagious flu, a growing awareness of all these factors,
    and employers are reacting to that.
        I am not suggesting every employer is in every situation.
    What I am suggesting to you is that they are listening, they
    care about it. These human resource professionals that we work
    with every day are on top of this. If we run a tele-seminar for
    our members, it is way oversubscribed in 2 days. If we have a
    webinar, it is well subscribed. These companies are on top of
    it and care about their employees.
        Chairman Miller. Mr. Guthrie?
        The gentleman's time has expired.
        Mr. Guthrie?
        You don't have--oh, maybe 1 minute?
        Mr. Guthrie. One quick question.
        Chairman Miller. Okay, one quick one.
        Mr. Guthrie. On the safe harbor in the bill, and this is
    for Mr. Clarke, if the employer requires notice of medical
    certification or call-in procedures, the use of paid sick
    leave, does it appear to you that the bill's safe harbor not
    apply?
        Mr. Clarke. It appears to me the safe harbor would not
    apply. These safe harbors have very specific provisions, and if
    they are not all checked in the right way, then there is no
    safe harbor.
        Chairman Miller. Thank you.
        Ms. Chu?
        Ms. Chu. Ms. Ness, you talk about the fact that there are
    15 cities and states that have considered paid sick day laws
    and that you are involved in about 25 campaigns across the
    nation on paid sick leave. I know that there could be local
    initiatives with regard to paid sick leave, but why in this
    case is it a point to have a federal standard?
        Ms. Ness. Well, mainly because right now there are only
    three localities in this country where there is a standard: San
    Francisco, Washington, D.C., and Milwaukee, which is actually
    being contested at the moment. And we are talking about
    millions of workers who need this basic workplace protection,
    and a patchwork approach isn't going to help to many millions
    of those workers.
        We need a basic labor standard, and the arguments that we
    hear today about why we can't do this now are the same
    arguments we have heard every time we move to put in place a
    workplace protection like this. And the evidence always shows
    that most of the claims about negative impact on business and
    negative impact on jobs never really materialized. We have good
    evidence that shows that this makes sense both for workers and
    for businesses, and we have reached the point where we need to
    act.
        I would like to just highlight this with the one reference
    to my earlier testimony, which is that communities of color and
    low-income communities are particularly hard hit by the lack of
    this protection. And there is some evidence now that the rate
    of H1N1 in those communities is higher. The rate of
    hospitalization in those communities is higher.
        If you think about it, it makes sense. People who don't
    have paid sick days can't stay home, can't take care of
    themselves, can't get care. They get sicker. They are sick
    longer, et cetera.
        Ms. Chu. Dr. Schuchat, could you address why there should
    be a federal standard, if we are to do such a thing?
        Dr. Schuchat. No, as a public health expert, our--and my
    colleagues and I at CDC are just keen that it is easy for
    people to do the right thing. And we have issued guidance from
    the federal level to help employers, schools, health care
    workers and others know what the best science suggests. And
    that suggests that staying home when you are sick for 24 hours
    after the fever has broken is the best medical advice. It helps
    you get better, but it helps you from infecting other people,
    so this is really our approach, you know.
        As a center director at CDC, I have about 800 people who
    work for me, and I have a very committed workforce that wants
    to come into work. It is very fortunate that my workforce has
    benefits that let them stay home when they are sick and that
    they do that kind of work that lets them telecommute, so it is
    just--I think our goal is just to make it easy for people to do
    the right thing and not infect their co-workers.
        Ms. Chu. Ms. Ness, I was chair of an underground economy
    task force when I was in the legislature in California, and I
    know that it is very difficult to enforce the standards, even
    very basic things such as minimum wage. How could we ensure
    that once we pass this law that it could be enforced? How could
    we ensure that there would not be employers that would just
    send employees home and then just stop their pay?
        Ms. Ness. Well, given that this is emergency legislation,
    there would need to be very rapid response. And with an
    emergency response to gearing up for the right kind of
    enforcement, we believe there needs to be call centers where
    people can call for help to understand and also to report when
    the law is not being followed.
        We think the Department of Labor would need to set up some
    rapid response teams to make sure, given the emergency nature
    of this legislation, that we have got the right enforcement in
    place. And there needs to be real education both for employers
    and employees.
        Ms. Chu. Dr. Schuchat, I wanted to--you talked about
    enforcement--I want to raise an issue that happened in my
    district. There was a tragedy that occurred with a woman named
    Monica Rodriguez, who was pregnant and went to a hospital, and
    she was coughing. They just sent her home with cough syrup. She
    went to another hospital 2 days later and was admitted into the
    intensive care, and it turned out she did have H1N1, and she
    died, as well as her unborn child.
        It seems crystal clear what the guidelines are with regard
    to pregnant women with severe flu-like systems. Can you tell me
    what kind of enforcement mechanisms there are for hospitals to
    actually follow these guidelines?
        Dr. Schuchat. Yes, we have really been intensifying our
    outreach to the obstetric community, to the health care
    community. There is just a long-term tradition of reluctance
    among pregnant women and their caregivers to give the
    medicines. There is a fear that, you know, we don't know if
    this is a safe approach. There have been some misunderstandings
    about the lab tests and their accuracy.
        We have really been working hard to get the message out
    that a woman who is pregnant who has got a fever and cough
    really needs to be given antiviral medicines. They can be
    lifesaving. This is not just something to pooh-pooh and
    something we want women to know, to take very seriously, and
    their doctors. We have done a lot of outreach much more
    intensively over the past couple of months as disease has
    increased and just trying to hope that we can decrease that
    kind of terrible story.
        Ms. Chu. Thank you.
        I yield back.
        Chairman Miller. Ms. Fudge?
        Ms. Fudge. Thank you, Mr. Chairman.
        I thank all of you for being here today.
        Mr. Clarke, in your testimony, and correct me if I maybe
    didn't read this properly, but in your testimony, your written
    testimony, you appear to have looked rather closely at
    employees that in general have relatively high wages and more
    flexible workplaces. Did you have the opportunity at all to
    analyze the legislation from the perspective of individuals in
    industries or occupations earning less income or in less
    flexible workplaces?
        Mr. Clarke. Well, yes. Our membership literally goes from
    workplaces with two employees to, in one case, probably 20,000
    employees, and half of our membership is under 100 employees,
    so that is a partial answer. But what I am really----
        Ms. Fudge. No, I am looking at the incomes of the
    employees.
        Mr. Clarke. Oh, yes. Oh, yes. And, oh, gee, widely, widely
    variable. This is a, you know----
        Ms. Fudge. No, no, no. That is not my question. I
    understand that it is very variable, but in your testimony you
    basically look at people who make a lot of money, who make more
    than the norm.
        Mr. Clarke. Oh, no, no. I wouldn't say that at all. We have
    a lot of processing facilities, a lot of, you know, low-end
    manufacturing, a lot of roles--hospitality, food service,
    hospital, bank, office work that is not highly paid at all.
    Where I am going with that is that I think our mix represents
    the market fairly well.
        But where I am going with this is that, again, neither of
    these bills reached down below the 15-employee threshold. I am
    not, certainly, advocating that you change the threshold. I
    just think we need to recognize that a disproportionate
    percentage of the issues we have discussed today likely come
    from the under 15-employee group. And it is also the toughest
    group to put a mandate on economically. So I think that is an
    important point to make.
        Ms. Fudge. Well, I am not making that point. My point is in
    your testimony you really do look at people who are in
    manufacturing who make more than the norm, and you did not
    really, in my opinion, look at those who are in lower income
    brackets and those who are in less flexible workplaces.
        Ms. Ness, you talked a bit about using some kind of a Web
    site or hotline or telephone line to report retaliation or the
    discrimination that is based upon employees taking time off. Do
    you really think that the telephone hotline or Web site are
    enough to encourage workers to take time off in the face of
    possible retaliation or discrimination by their employers? And
    do you have any other recommendations that we may be able to
    use to minimize that?
        Ms. Ness. No, I don't think that by itself is enough. I
    think it is a tool, particularly if we are talking about
    emergency legislation that we are trying to get up and running
    quickly. It is a tool to both answer questions and also to
    report problems.
        But there needs to be serious resources allocated within
    the Department of Labor to do the proper enforcement. They need
    all the tools they need to be able to do the data collection to
    make sure that employers are doing the right thing, and they
    need to do serious education of both the employers and the
    employees.
        I think enforcement should be combined with strong
    education, but if we are talking about emergency legislation,
    there probably needs to be some very quick rapid response in a
    telephone hotline to facilitate, not as a substitute for, rapid
    enforcement.
        Ms. Fudge. Thank you.
        And I just want to say for the record, Mr. Chairman, that
    understand I didn't run a small business, but as the mayor of a
    city, I had more than 250 employees in a small city. We had the
    kinds of programs you are talking. We had sick leave. We had
    vacation time. We had personal days, et cetera.
        If I had allowed to people to just take a vacation day when
    they felt sick, with no prior warning or to just use the time
    any way they wanted to use it, I couldn't get the trash picked
    up, I couldn't get the firefighters out, I couldn't get the
    police department out. So it really is very different.
        It is very different to say that there is a pool and they
    can just use it any way they want to. In theory that sounds
    good, but in practice it does not work. So I just want to say
    that for the record, Mr. Chairman. Thank you. I yield back.
        Chairman Miller. Mr. Loebsack?
        Mr. Loebsack. Thank you, Mr. Chairman.
        Thanks to all of you on the panel. And as a representative
    from Iowa, I am very appreciative of the fact--I wasn't in here
    the whole time, but I think everyone has said H1N1 and has not
    used the less formal term for this, so thank you very much for
    using H1N1.
        Dr. Schuchat, I tried to write down some of the numbers
    that you gave us. Did you say that so far 48.5 million doses
    have been distributed? Is that correct?
        Dr. Schuchat. As of today, 48.5 million doses have become
    available for the states to order.
        Mr. Loebsack. Okay. Do we know how many of them have
    actually been distributed and actually been taken?
        Dr. Schuchat. We know that the states are doing a very good
    job ordering their doses, and, you know, within a day or so
    that the doses are shipped out to them.
        We are carrying out coverage surveys, so we will have a
    better sense of the proportion of the population that has
    received the vaccine. Our preliminary data suggest that it is
    going to the high risk people right now, but I think later this
    week we are hoping to get those numbers cleared up and be able
    to release them, at least the early coverage data.
        Mr. Loebsack. The reason I asked--it sounds like this is a
    very complicated outreach program. It is very complicated. I
    would like to see a little chart, if you will, sir, you know,
    laying out the high-risk populations, laying out what the CDC
    does, and then at the state and local level, who is responsible
    for what essentially. But do you have any estimate as to the
    number of doses that will eventually have to be distributed and
    taken by individuals?
        Dr. Schuchat. It is extremely difficult to come up with
    that number. One of the things that we know is the number in
    the population group, the 159 million in these five groups that
    we have targeted, does not equate to the number of doses that
    we need.
        We know that we never have 100 percent uptake of any
    intervention. With seasonal flu about 100 million people get it
    each year--the vaccine. And we recommend it for about 253
    million people. We think the demand is greater for the H1N1
    vaccine than for seasonal flu in usual years, but we don't know
    exactly where that sweet spot will be when we are finally able
    to reach--achieve--really to meet the demand.
        One thing that has happened is that area-to-area and week-
    by-week, demand can change. So we are working really hard now
    to use every dose we get. And what will happen over the weeks
    ahead with demand, whether it will increase further or
    decrease, we don't know. We are certainly planning to try to
    have more vaccine than the demand, but when we will get to that
    point I don't know.
        Mr. Loebsack. All right. And you do have a system in place
    where you can be tracking all this, obviously, in the feedback,
    and----
        Dr. Schuchat. That is right. We have a national H1N1
    influenza survey that is being carried out. And then we are
    also supplementing the behavior risk factor surveillance
    system, which would give us state specific coverage data and
    also will let us see how are we doing in pregnant women, how
    are we doing in health care workers, in children, and so forth,
    so that we can get a little bit more granular data.
        And perhaps in the future we will be able to learn a little
    bit about where did we do very well and where did we not do as
    well. The system works based on state and local direction of
    the programs, and we are really trying to find best practices
    and share them quickly.
        Mr. Loebsack. So you are getting feedback all the time. You
    are refining the system all the time. So I mean the goal,
    obviously, is to get these--the vaccine doses--to as many
    people who need them as possible, so all along the way you are
    trying to refine the----
        Dr. Schuchat. That is right. I think the spirit is
    continuous quality improvement, not waiting for 2 years from
    now to figure out what is the best way to go.
        Mr. Loebsack. Right.
        Dr. Schuchat. And I can say that at the state and local
    level, day-by-day they are improving. You know, some of those
    long lines we saw, the next day the health departments were
    handing out numbers and figuring out, okay, we got 2,000 doses,
    2,500 people in line, giving the last 500 people early notice
    that you are not going to make it today, but if you come back
    tomorrow, we will put you up at the head.
        Mr. Loebsack. Okay. Thank you.
        Ms. Ness, a quick question about--did I hear you say that
    there is a correlation essentially between income level and
    number of paid sick leave--sick days? Is that correct?
        Ms. Ness. Yes, what I said is that low-income workers,
    workers in low-wage positions, are less likely to have these
    kinds of job protections.
        Mr. Loebsack. Can you elaborate on that? I mean how strong
    is that correlation? I don't know if you have an R for me or
    any kind of a statistic for us.
        Ms. Ness. We know that if you look at all workers, for all
    private sector workers it is approximately half that don't have
    paid sick days. But if you look at low-wage workers, we are
    talking four out of five.
        Mr. Loebsack. Okay.
        Ms. Ness. Another way to think about it is 22 percent of
    food service or public accommodations workers--folks, for
    example, who work in hotels--have paid sick days--only 22
    percent. That is sort of less than a quarter of the workforce
    would apply to nursing home workers and child care workers as
    well.
        Mr. Loebsack. Okay. Thank you.
        Thank you, Mr. Chairman.
        Chairman Miller. Thank you.
        Dr. Benjamin, I think we have to excuse you, I am told,
    so--that you have another commitment. So thank you very much
    for your time. If we have questions, we will follow up with you
    in writing, if that is all right.
        Dr. Benjamin. Yes, sir. Thank you very much.
        Chairman Miller. Thank you very much for your time.
        Mr. Payne?
        Mr. Payne. Thank you.
        Actually, as we in New Jersey are very concerned as other
    parts in our--now, the first death of H1N1 in New Jersey
    occurred in my district, West Orange. And currently, we have
    had 22 deaths so far. We have had nearly 800,000 doses
    provided, about 40 percent of what our needs are in the state.
    So we are still lagging behind. And, of course, we have
    certainly a preference to pregnant women and young children.
        And let me just ask you, Doctor, has the question of
    pregnant women been answered yet? Initially, there was a
    question of whether they should take it, whether they shouldn't
    take it. And, of course, the early doses we know were in
    pregnant women, therefore, the need being there. However, the
    question of whether it was safe enough--how has that been
    worked out?
        Dr. Schuchat. Based on everything that we know right now,
    the risk of H1N1 disease in pregnancy greatly exceeds any
    hypothetical risk from the vaccine. NIH has carried out a
    clinical trial in pregnant women, and the initial results
    suggest very good immune response from the vaccine, suggesting
    it will work really well, and no red flags in terms of safety.
        There is an effort to commitment to follow up the women in
    that trial long-term and their babies, and then also nationally
    to do some monitoring in pregnancy. There haven't been any red
    flags at this point in the use of vaccine in pregnant women,
    but we do continue to get these very sad stories of women who
    are really in critical care, on life support, and sadly, many
    of them having died.
        So we know that this is a bad disease in pregnancy, and the
    vaccine is made exactly the same way as seasonal flu vaccine,
    which is used in lots of pregnant women and has a very good
    safety track record.
        Mr. Payne. Ms. Ness, you mentioned in your testimony that
    several cities--the District of Columbia, San Francisco,
    Milwaukee--provide paid sick leave and by ordinance. I wonder
    if--have these cities found that the employer mandates is a
    great burden on employers? And are employers in those cities
    complaining about workers abusing this privilege?
        Ms. Ness. Well, San Francisco is the one city that has been
    in place long enough for us to actually take a look. And the
    results have been very encouraging. In fact, there was some
    research done to look at job creation, and it turned out that
    job creation in the city of San Francisco was actually higher
    since this mandate than in the surrounding areas that did not
    have the guaranteed paid sick days.
        Mr. Payne. Thank you.
        Mr. Clarke, in your Capital Associations Industries, what
    type of industries basically are there? I was out, and you
    might have mentioned it. Are they manufacturing--primarily
    manufacturing, right?
        Mr. Clarke. Well, at our founding back in the 1960s, it was
    primarily manufacturing. Today it is about 32 percent
    manufacturing. We really represent the broad spectrum of the
    business community.
        Mr. Payne. Okay. And, of course, as you have heard
    previously, I guess, there is always a lot of concern about
    particularly those--and, you know, our society is sort of--
    things, you know, sort of upside down--those who have the, in
    my opinion, some of the more important positions--food service,
    caring for the elderly, caring for children, and it is quite a
    few people in that category, of course, tend to be the lowest
    paid.
        And when you are low paid, you certainly are not expecting
    to have robust employee benefits. And so, you know, I am
    looking at that at 80--mine was 80 percent full, too, but it is
    empty now--your 80 percent glass that you keep saying about how
    good things are for four-fifths of the people. You therefore
    assume that that last 20 percent, that unfilled glass, is
    primarily filled with those folks who are working with the
    elderly, working at, you know, homes for geriatrics, food
    service workers.
        How do you kind of, you know, figure out, even if it is
    just a 20 percent, isn't this kind of an important 20 percent
    that is not covered, and that you still contend that a person
    should be responsible for their own sick leave, since in many
    instances these places do not provide them? How do you
    reconcile all that?
        Mr. Clarke. Well, sure. The food service industry is not,
    you know, all monolith. There are some large, very large
    companies that play in that space. They are going to have a
    different set of benefits, perhaps a different view toward all
    types of paid leave. A very small player, a very local
    individual, a caterer, for example--not to pick on caterers--
    might not have that level of sophistication or economic
    wherewithal, so it is, you know, I think it is difficult to
    take an industry and say that industry would not have this
    benefit.
        I think the comment I would make is that the industries you
    mentioned tend to have a higher proportion of people that work
    part-time, and that about half of the time part-time employees,
    even in those industries that you named, are accumulating sick
    days, but simply at a lower rate proportionate to the hours
    that they work.
        Chairman Miller. Ms. Woolsey?
        Ms. Woolsey. Thank you, Mr. Chairman, for holding this
    hearing, because it is not only important, it is timely right
    now.
        Our witnesses have pointed out that H1N1 has now spread to
    46 states and that it is certainly a serious threat to public
    health, particularly when workers come to work sick, because
    they can't afford to do otherwise. Ultimately, I believe we
    need to pass Representative DeLauro's Healthy Families Act so
    that all workers have paid sick days and job protections when
    they need to care for themselves and their families.
        But to face our current crisis this emergency legislation
    is needed. I think we need to tweak it here and there, but that
    is why I co-sponsored the Emergency Influenza Containment Act
    that was introduced by Chairman Miller, which, by the way, I
    hope everybody is aware--we keep talking about small business--
    this legislation exempts small employers, and actually over 80
    percent of our workers in 2005, annually, were employed by
    small businesses that employed under 20 employees. So small
    employers are pretty well exempted from this, and that's 80
    percent of our workforce right then and there.
        But the goal is a good start, Mr. Chairman, and it
    certainly addresses an emergency situation.
        Ms. Ness, I really agree with a lot of what you said in
    your testimony about strong job protection and employees
    needing to have discretion on whether--really, both of you said
    that, and so did Dr. Benjamin--that it really should not just
    be left up to the employer.
        And so here is my question, because I don't want to repeat
    everything everybody has said. If there is a question, if we
    need to have verification, or if the employer doesn't believe
    the employee, who is the tiebreaker on this? What would you
    suggest that we have just to make sure that employers don't
    feel like they are being taking advantage of and that employers
    don't take advantage of their employees.
        Ms. Ness. Right, right. Well, as we know, many employers
    successfully manage paid days policies today, so it is not like
    this is something groundbreaking a new. And I think there is a
    large body of experience we can draw on. But that Healthy
    Families Act does allow employers to request a medical
    certification after a three-day period. That is a protection
    that was built into the legislation.
        I also would say, you know, we hear all the time about
    concerns that employees might misuse this. The data show that
    when employees do have paid sick days, about half of all
    employees don't use them. And when you look specifically at
    employees that have a minimum of seven paid sick days, the
    average amount that employees take is around 2.5 days.
        Ms. Woolsey. And would you like to take it one step
    further? Female employees take their sick time off for their
    families.
        Ms. Ness. Yes, I mean we feel very strongly that any kind
    of paid sick leave legislation needs to make sure that it is
    family flexible. And we tend to think particularly now with the
    H1N1 epidemic about children needing care.
        But we are also facing a tsunami of caregiving challenges
    in this country as our population ages. And it is expected that
    over the next couple of years half of the workforce will be
    caregivers. And so these issues, while we have an emergency
    situation right now with H1N1, these caregiving challenges are
    not going away. They are only going to get worse.
        Ms. Woolsey. Taking care of not only their own children,
    but their parents.
        Ms. Ness. That is right. And for women in particular, women
    who are in particular in the baby boomer generation right now
    are being hit from every direction. They are not only still
    taking care of the younger generation, they are increasingly
    taking care of elders, who are living longer and also living
    sicker, so their health care needs are more complex.
        And because of the rapid increase in chronic conditions,
    they are also grappling with their own health care conditions.
    So for women, the need for there to be some basic minimum
    number of paid sick days is tremendous.
        Ms. Woolsey. Dr. Schuchat, do you have any comments on
    verification?
        Dr. Schuchat. You know, I can say that in the midst of this
    particular pandemic, we have focused on ways to decrease the
    pressure on the health care system, both to have people not
    clog up the emergency departments with relatively mild illness
    and to have to discourage people or employers from visiting the
    doctors just to get a note, because that can actually tie up
    very scarce resources.
        So I think we have urged flexible release policies and also
    the temporary release from that need to get the note because of
    the negative impact it would have on the health care system.
        Ms. Woolsey. Thank you.
        Ms. Hirono. Thank you, Mr. Chairman.
        Several of my colleagues have already taken note of the
    fact that H.R. 3991 is it is up to the employers to kick off
    this coverage requirement. My question to Mr. Clarke and Ms.
    Ness is do you think in the real world that this would
    therefore result in many employers not asking their employees
    to stay home because they are sick?
        Mr. Clarke. You know, I would hope not. I would hope not.
    Though, if you do assume, if you do come from the point of view
    that there are employers that want to minimize every expense,
    don't want to provide an employee anything, either because they
    can't or they just won't, if you categorize a group of
    employers that way, then it is easy to say, well, that group
    with that mindset is not going to suggest or direct. I think
    that is a conclusion that you can make about this hypothetical
    group of employers.
        Ms. Hirono. Ms. Ness?
        Ms. Ness. Well, I would like to think that all employers
    would do the right thing, but the numbers right now show that
    they don't. And so I believe it is important that we not leave
    it to employers' discretion as to whether or not somebody
    should stay home if they are sick or to be able to say you must
    come in even though you are sick. I do think it is important
    for that to be at the employees' discretion, even though I
    would like to think that most employers behave in a very humane
    way.
        Ms. Hirono. Ms. Ness, you mentioned San Francisco's
    mandate. Is that at the employees' decision to----
        Ms. Ness. Yes, it is.
        Ms. Hirono [continuing]. Require coverage?
        Ms. Ness. In all three cities it was an employee decision.
        Ms. Hirono. Mr. Clarke, would your objection to this bill
    be even greater if it was changed to--on H.R. 3991 that if we
    were to change that to employee's action as opposed to the
    employer's control?
        Mr. Clarke. Yes, I think unilateral, non-communicative,
    don't have to speak to you for 3 days, don't have to report
    what I am doing for 2 days is a very, very unworkable right to
    give an employee base. Yes, I think that would be very
    difficult.
        Ms. Hirono. Although apparently San Francisco has done this
    and the world has not come to an end there.
        Mr. Clarke. Some may debate you on that one.
        Ms. Hirono. Thank you very much.
        I yield back.
        Chairman Miller. Would the gentlewoman yield for a second?
    Let me just----
        Ms. Hirono. Yes.
        Chairman Miller. Mr. Clarke, you suggest that--I think you
    are probably correct in most instances that there probably is
    relatively a few number of employers that just view any of
    these things as antithetical to whether it is their
    profitability, their survivability, however they judge the
    outcomes of their businesses.
        But then if that is a very low number, and in the greater
    emphasis that you are talking about, employers are willing to
    trust employees for 7 days to say, ``I have got to take care of
    my kid or I am going to stay home, I am sick'' or whatever the
    situation is, that we don't assume that those people are gaming
    the system.
        Is this essential to have what is viewed as sort of a
    employer protection at the employer discretion in the bill at
    all? I mean are we still talking--are we really focusing on
    such a small number of employers that the safeguard really is
    sort of not real?
        Mr. Clarke. Well, hypothetically, that could be the case,
    except that the way the bill is written about the other things
    around the safe harbor, the other things that have to be in
    place, if it was purely an issue of does employer-based
    discretion make a mandated leave more palatable to the
    employer? Well, yes. But when you layer that around with the
    barest details that have to be in place, that really blunts
    that advantage.
        Chairman Miller. All right. It is a beginning. Thank you.
        Mrs. Davis is next.
        Mrs. Davis. Thank you, Mr. Chairman.
        And, Dr. Schuchat, first you mentioned that you were able
    to track schools to have information about how they are doing,
    the number of students that are absent, et cetera, and the
    reason for that. Is there a database set up so that businesses
    can respond?
        I am thinking of really the restaurants in my district, for
    example, and I think the people who are working part-time and
    are facing the public--there are many, many professions,
    occupations that are doing that--but particularly in the
    restaurant business, I think this is a real concern, and a lot
    of them have more than 25 or 100 employers. I mean is there a
    way to actually track what is happening in that area?
        Dr. Schuchat. No, I am not aware of a systematic tracking.
    It may be that Department of Commerce or Department of Labor
    has something that we are not collaborating on. We have been
    doing some general surveys or polls with some universities to
    understand the impact that the pandemic is having on different
    sectors.
        We did one--or Harvard did one, I think, this summer that
    looked at employers and their policies. It was before the
    increase in disease in the fall, and so whether--we will need
    to check and see if there is anything ongoing or that might be
    done that would look at those matters.
        Mrs. Davis. Yes, it seems like there might be a fairly
    simple way of doing that and allowing them to kind of report
    those numbers, because if in fact it is spreading faster in
    that industry as opposed to other industries, I don't know.
        Do you know, Mr. Clarke? Any thoughts about that at all
    from your constituency?
        Mr. Clarke. I do not. I think the doctor would be a lot
    more qualified on that point.
        Mrs. Davis. Okay. Thank you.
        And then in terms of the information that they receive,
    small businesses don't--you know, they are so busy just making
    payroll that they don't have a lot of time to be checking and
    seeing what kind of information is out there. How are we
    getting that information out to them? What resources are they
    able to use? And, you know, are they using it?
        Dr. Schuchat. There has been an active outreach effort. The
    Commerce Department, HH, U.S. Chamber of Commerce have been
    trying to get information out, not just to the larger
    businesses, but to the small businesses.
        We partner with the Small Business Administration on some
    of that, looking at those Web and other venues to reach people.
    Particularly as we issued new guidance, we wanted to make sure
    it was broadly received. And the state partners and some of
    those organizations have really helped with that locally.
        Mrs. Davis. Great.
        Mr. Clarke. Representative Davis, if I might say, the
    communication has been terrific.
        Mrs. Davis. Oh, okay.
        Mr. Clarke. The Internet has just made it so accessible. I
    think any employer that touches any business-oriented
    organization has received multiple messages and links and
    assets regarding H1N1. And I doubt that I have been in a place
    in the past month that didn't have good practice guidelines
    hanging on every wall in that employer's place.
        Mrs. Davis. Well, thank you.
        Mr. Chairman, I think this is an important issue. There
    certainly are challenges. I don't think everybody acknowledges
    that there can be some misuse of some of this, but on the other
    hand, you know, the alternative is not a good one either. I
    mean that is life and death issues for people, and so I think
    we need to try and figure out how best to deal with it.
        Thank you, Mr. Chairman.
        Chairman Miller. Mrs. McCarthy?
        Mrs. McCarthy. Thank you, Mr. Chairman.
        Mr. Clarke, could you define what a small business is?
        Mr. Clarke. Well, I think the SBA definition is under 100
    employees, I believe, but it is really in the eye of the
    beholder. I have met people with 30 employees that think they
    are medium-size, and I have met people with 200 that call
    themselves small.
        Mrs. McCarthy. Actually, the number goes much higher. Some
    areas would say small businesses are 400 and under, but
    basically, what we are talking about an awful lot of our part-
    time workers. If you work for a large corporation, yet they
    have a lot of retail stores, and most of the women that work in
    those retail stores are part-timers, none of them get health
    care. They get minimum wage, just about.
        But the other thing that I was interested in--you kept
    talking about short-term sick leave. That is a policy that the
    employee can buy? Or does the employer offer that?
        Mr. Clarke. The example I gave was a large food processor
    that provides that free of charge to the employee base, to the
    hourly employees, and that provides up to 6 months of short-
    term disability wage replacement during an illness lasting up
    to 6 months.
        Mrs. McCarthy. Do you know that with taking short-term
    insurance that if you came down with a virus or anything else,
    you would be turned down for any kind of large health care
    policy that you might want to go into later down the road
    that--because they have preemption, as far as pre-existing
    conditions?
        I mean that is one of the problems with the short-term. If
    you use that short-term, whether it is a college student
    getting a bridge between short-term and full-term, they have
    quite a bit in there as far as saying that if you have a pre-
    existing condition, which we know could be almost anything,
    they could be turned down for full-time insurance.
        So would it not be true that for some of the stores or
    people that you represent, it could be a shortcut, because they
    would not be able to get full-time health care insurance for
    their employees?
        Mr. Clarke. Well, I am really not aware of the facts you
    state, and I can't dispute them. What I can say is that I have
    never seen an employee enter an STD, or short-term disability
    policy, whether that was insured or whether that was paid by
    the employer's checkbook, which most of them are----
        Mrs. McCarthy. I will be honest with you. I would think
    that most employers don't even know that some of the health
    care provisions that they give their employees--and I am not
    saying they are doing this on purpose--I am just saying that if
    an employee has any kind of an illness, any kind of a disease,
    they can be--high blood pressure--so we are talking about--Ms.
    Ness was actually talking about it--if you have underserved
    communities, the majority, unfortunately, have high blood
    pressure. They have diabetes. They have other illnesses that
    could actually be controlled as a chronic care, but they would
    be denied health care. And I think that is one of the reasons
    that we are fighting for stopping pre-conditions.
        Ms. Ness, could you follow up on that as far as large
    corporations, but individual stores, which are mostly run by
    women, or work there?
        Ms. Ness. Well, I think you are underscoring the fact that
    women are the majority of part-time workers, and those part-
    time workers tend not to have any benefits. And so sometimes
    you have an employer that is offering decent full-time
    benefits, but they are not available to the part-time benefits.
        Many of the women in those very low-wage jobs are stringing
    together more than one job in order to make ends meet to
    support their family. For those women, not having any benefits
    is--it ripples through every aspect of their lives. They not
    only don't have time off when they are sick, they don't have
    health insurance, and they don't have any ability to take care
    of their children when their children get sick.
        And, you know, we often say that a lot of these women are
    just one sick kid away from losing their job, one sick kid away
    from unemployment. There really is no safety net or any
    protections for them.
        Mrs. McCarthy. I know one of my colleagues brought it up a
    little bit earlier, but when we see how this virus spread so
    rapidly--we saw it in our schools; we have seen it in some of
    our nursing homes where there are a lot of part-time workers,
    especially workers that are only from the underserved area--and
    yet, you know, we keep talking about the costs of not having
    someone go home.
        I know in my office--and we are lucky; we are the federal
    government; we don't have pre-existing conditions, as far as
    that goes--maybe I am a little paranoid about it, but on every
    desk we have some, you know, to clean your hands when you come
    in. Our business, we shake hands constantly with everybody.
        But the cost of when the flu hits the office, the cost of
    it spreading, because not only is it in the office, depending
    on how they transfer to go to work--New York City, the largest
    cities, you are talking about trains and subways, you are
    talking about buses--could you expand on that, Doctor?
        Dr. Schuchat. Yes, our recommendations are that people not
    only stay home from work or school when they are sick, but they
    stay home, that they are not just--that kids who are sick not,
    you know, not go to school, but then go off and hang out with
    their friends. The idea there is to limit spread.
        There have been economic analyses of the cost of seasonal
    influenza on society in terms of both lost work and the impact
    on spread and so forth, and it is many, many billions of
    dollars each year that we spend on that disease, even when it
    is not causing excessive rates like we are having now with this
    pandemic, which is striking more a younger working age
    population than would seasonal flu in terms of the severe
    complications.
        Mrs. McCarthy. Thank you.
        Chairman Miller. Mr. Scott?
        Mr. Scott. Thank you, Mr. Chairman.
        I want to thank our witnesses.
        Ms. Ness, we exempt businesses with with less than 15
    employees. Most employers with more than that would have some
    kind of sick leave. Do you have any idea of how many people
    this bill would actually cover?
        Ms. Ness. NO, I need to get back to you on those numbers.
        Mr. Scott. Dr. Schuchat, from a public health policy
    perspective, what effect--you kind of talked a little bit of
    this in response to the last question--what effect would this
    have on preventing an epidemic? It is not limited to epidemics,
    and presumably we are trying to prevent them from happening.
    And on all the kinds of things that we can do to prevent
    epidemics, where would this bill fall in a priority list?
        Dr. Schuchat. Well, we think that the ability to slow the
    spread of infectious diseases like flu is important in terms of
    that they picture a disease. With a pandemic in particular, we
    are trying to slow the spread, but in order to, you know,
    benefit people who won't get infected, but also to decrease the
    pressure on the health care system, which may, you know, have
    errors if there are too many people sick at the same time, and
    also to buy more time for vaccine production so that we can
    protect more people from ever getting sick.
        So the idea, you know, since the spring that we have been
    pushing--stay home when you are sick; keep your children home
    when they are sick--is in order to reduce illness and really
    delay the impact that we have on these other sectors. So it is
    a very important feature, particularly in an area where there
    is scarce vaccine.
        Mr. Scott. With all the exemptions and what kind of effect
    would you expect the passage of this bill to produce? What
    effect?
        Dr. Schuchat. I can just speak to the public health side
    that, you know, our sense is that when it is easier for people
    to make healthy choices, they are more likely to, and that that
    is in the public interest.
        Mr. Scott. Mr. Clarke, in terms of enforcement, is there
    any reason to believe that it would be harder to enforce this
    act than the minimum wage bill under the fair labor standards?
    Is the enforcement mechanism--yes, can you comment on the
    enforcement mechanism?
        Mr. Clarke. Yes. Yes, I could make two comments. I think it
    was mentioned earlier that the minimum wage law has such broad
    application for the workplace--you know, employers well under
    15 employees would be covered by minimum wage. And it is, in my
    opinion, a under enforced law. You know, I have been around
    workplaces for 26 years, and I think it is a very difficult
    task for any government agency to get to every workplace and
    address every conceivable issue, be it minor be it major, so I
    think that is a very difficult task.
        I think what makes it even more difficult to enforce a new
    emergency act like this is that it is new, that it will not be,
    for some extended period of time, well understood in its
    detail, will not for some period of time be, because it has got
    such a short enactment date on it, well complied with, I think,
    universally. Those things take time.
        Mr. Scott. Well, in terms of enforcement, wouldn't you
    expect the enforcement to take place when there are complaints?
    And you wouldn't expect federal workers to be running around
    trying to visit all the employers. They would wait for somebody
    to complain.
        Mr. Clarke. That is true. Most complaints of minimum wage,
    and I would expect it of this statute, would be based on
    employee complaint.
        Mr. Scott. And finally, Dr. Schuchat, could you give us an
    idea of what the rate of production of the vaccine is now?
        Dr. Schuchat. Yes, as of today there are 48.5 million doses
    available for the states to order. We are working hard with
    them----
        Mr. Scott. All right, wait a minute--for the states to
    order?
        Dr. Schuchat. That is right. That means that----
        Mr. Scott. Does that include the ones they have already
    ordered?
        Dr. Schuchat. It includes what they have already ordered.
    It is a cumulative total. And each morning the states receive
    an allocation number, you know, that subtracts what they have
    already ordered and tells them you have got so many new doses
    or old doses. This is how many you can order from today. They
    put in their orders every day, and the orders are submitted to
    the central distributor and shipped the next day.
        So we have been working hard with the manufacturers to try
    to be able to look at the next several weeks' estimates and are
    hoping to be able to share that more publicly very soon. As you
    know, it has been very difficult to predict what the yields
    would be. And the past, you know, 2 months really we were not
    where we wanted to be since we started immunizing.
        This past week we missed the projection by about three
    million doses. Next week we--the current week we believe will
    be better, but it has really been very challenging.
        Mr. Scott. How many doses a week are you producing?
        Dr. Schuchat. It has ranged. You know, the first week or 2
    was about 2.5 million, and then we hit, I think, 11 million
    doses a week a couple of weeks ago. Last week we only got about
    5 million doses.
        Mr. Scott. Why is it not continuing to increase?
        Dr. Schuchat. What happens--right--what happens is there is
    a certain part of this that was due to the slow-growing virus
    and just that low yields that many of the manufacturers were
    getting. Most of them have been able to find better growing
    viruses and are getting higher yields.
        And the very last stages of production involve testing
    individual lots. And what happened last week and, I believe,
    has happened certain weeks is that that very last test stage
    you can't predict whether everything was going to pass the
    testing or need to be further looked at. And so some of the
    lower results were because lots could not be released.
        Some of the other decrease was due to delayed shipment
    because of the bad weather in parts of the country, that the
    doses didn't actually reach our central distributor on Friday.
    They reached it on Saturday because of the storm. And so, you
    know, this is a day-by-day thing, and even when the
    manufacturers really are on top of everything, their
    predictions need to incorporate some of these last-minute
    things that they wouldn't know the week before.
        Mr. Scott. Thank you, Mr. Chairman.
        Chairman Miller. Just quickly, in the absence of this
    legislation, people are obviously going to make decisions about
    staying home or not. And I guess the question is can they be
    fired for that in the workplace? And I assume the answer is
    today, yes, you could be. I assume, Ms. Ness and Mr. Clarke,
    you would not agree with that policy.
        Mr. Clarke. No. No, no one should be fired because they had
    to stay home because they were sick. Of course not. And there
    are laws in states that would prevent that.
        To take a federal law that prevents that, the salaried
    exempt statues, the wage and hour statutes for salaried exempt
    provide that you must provide a certain number of paid sick
    days. I mean that is already in place for salaried exempt and
    that you can't be retaliated against for using your salaried
    exempt rights.
        And so, no, no one should be fired for that. I wouldn't
    support that.
        Chairman Miller. But there is a universe of people out
    there that in fact can be fired. I am not--I wouldn't--I assume
    we would endorse a policy that says you can't be fired for that
    reason, but there is a universe of people out there that
    clearly can be and are fired for missing a day of work for
    whatever reason.
        Mr. Scott. Mr. Chairman?
        Chairman Miller. Mr. Scott?
        Mr. Scott. There are some states that are employer employee
    at will, where there are really no rights at all--Virginia, for
    example. Is there any restraint in Virginia? You stay home, you
    get fired?
        Mr. Clarke. In North Carolina?
        Mr. Scott. In Virginia.
        Mr. Clarke. I can't speak to Virginia. In North Carolina,
    yes, there are. And the reason I say there are is that
    illness--you know, employers are very careful. I run into this
    all the time. Employers are very careful to not get into
    discussions with employees about the details of an illness,
    because they can easily take you to discussion around
    disability, which can easily take you to a violation on our
    state disability act or the federal disability act.
        So, you know, this whole area is--while maybe perhaps not
    technically regulated in a sense, the chairman cites----
        Chairman Miller. The safest policy would be not to discuss
    anything, but to fire you.
        Mr. Clarke. That doesn't look like----
        Chairman Miller. That is not the outcome we are looking
    for.
        Ms. Ness, do you want to comment?
        Ms. Ness. Yes, I just want to say you are absolutely right.
    There are people----
        Chairman Miller. Your mic is not on.
        Ms. Ness. Sorry. You are absolutely right. There are folks
    who can be fired, and that is why we need the Healthy Families
    Act as a basic standard to prevent that from happening.
        Chairman Miller. Mr. Thompson, anything before we----
        Mr. Thompson. I just want to thank the panel for the
    information provided and just to say, you know, certainly,
    having worked in the Emergency Medical Service as a volunteer,
    prevention--what we invest in prevention--goes far beyond, you
    know, finding a cure and addressing all the issues we have
    here.
        So, certainly, Admiral, I share your frustration in terms
    of the amount of--I mean we knew this was coming. We saw the
    first signs of it back in the spring, and so I share your
    frustration on the amount of vaccines that are available. I
    certainly would think that one of the things--and I am not
    looking for a response, but to encourage that after we go
    through the health risk, that maybe financial risk is on that
    list of vaccinations, working partnerships.
        I will be interested in working more with this on the Small
    Business Committee as well, at looking how we can work with our
    small businesses with partnerships to help protect the people
    and keep them, because this hearing is not about--I mean this
    is about H1N1, so--and that is certainly a specific thing that
    we should look into doing our best to prevent as well.
        Chairman Miller. Thank you all very much for your
    testimony. I hope that we can continue to work with you as we
    develop this legislation.
        And I would ask unanimous consent to enter into the record
    not the--the letter that you requested, right, but signed? I
    didn't respond to your request at that time. And also a
    letter--written testimony--from Melanie Disher, Sodexo food
    service worker, Plainfield North High School, Illinois, and
    which I think was read into.
        And without objection, members will have 14 days to submit
    their additional testimony.
        Thank you so much for your time. It has been lengthy, but I
    think very helpful to the committee.
        Thank you to the CDC for everything that you are doing in
    our general population. Thank you.
        [Additional submissions of Mr. Kline follow:]

                                                     November 17, 2009.
    Hon. George Miller, Chairman; Hon. John Kline, Ranking Member,
    Committee on Education and Labor, U.S. House of Representatives, 2181
            Rayburn House Office Building, Washington, DC.
        Dear Chairman Miller and Ranking Member Kline: We write today in
    reference to the recently introduced Emergency Influenza Containment
    Act (H.R. 3991). While we share your goal of protecting the health of
    the American workforce and minimizing the spread of the H1N1 virus and
    other contagious illnesses, we must oppose H.R. 3991 as it is currently
    drafted. The bill's vague provisions would significantly impair
    employers' existing paid leave programs and initiatives, thus creating
    a convoluted and unworkable mandate impacting businesses of all sizes.
        As you know, many employers have developed, or are in the process
    of developing, continuity plans in response to the current H1N1
    outbreak. These plans include the full range of workplace flexibility
    options, including telecommuting, job sharing, schedule changes, shift
    swapping and paid time off for the employee's own illness or to care
    for ill family members. In addition, the vast majority of employers,
    more than 80 percent, already provide employees with paid time off that
    may be used as sick leave. The rigid requirements of H.R. 3991 threaten
    employers' ability to flexibly and creatively design programs that meet
    the unique needs and constraints of that employer and its employees.
    Moreover, the legislation fails to adequately recognize and clearly
    exempt from any mandated paid leave requirement employers that are
    already providing paid leave that may be used for sick leave to its
    employees.
        As our economy begins to recover from the most severe recession
    since the Great Depression, businesses need to maintain flexibility in
    order to survive, grow and provide jobs in the face of ongoing
    challenges, including the potential impact of contagious illnesses such
    as H1N1. A one-size-fits-all paid leave mandate that is applied to the
    broad, diverse industries that make up our nation's marketplace would
    negatively impact all employers, including small businesses, and limit
    our ability to retain and create new jobs.
        The attached document outlines in more detail the important
    concerns we have about the Emergency Influenza Containment Act. We look
    forward to working with the Committee to address our shared goal of
    maintaining a healthy and productive workforce while ensuring the job
    retention and job creation that will ultimately bring us out of this
    recession.
                Sincerely,
                                   American Bakers Association,
                          American Hotel & Lodging Association,
                           Associated Builders and Contractors,
                        Association of Equipment Manufacturers,
                                      American Foundry Society,
                                Associated General Contractors,
       College and University Professional for Human Resources,
                                      Food Marketing Institute,
                                         HR Policy Association,
                            Independent Electrical Contractors,
            International Foodservice Distributors Association,
                           International Franchise Association,
                        North American Die Casting Association,
                         National Association of Home Builders,
               National Association of Wholesaler-Distributors,
                                     National Club Association,
                   National Federation of Independent Business,
                                    National Retail Federation,
                      National Roofing Contractors Association,
                           National Small Business Association,
    Plumbing-Heating-Cooling Contractors--National Association,
                                Printing Industries of America,
                           Retail Industry Leaders Association,
                     Small Business & Entrepreneurship Council,
                                Tree Care Industry Association.
                                     ______

                 Emergency Influenza Containment Act H.R. 3991

    Employer Action Triggers
         The bill provides paid leave for workers who are
    ``directed'' or advised by their employer to leave work or not come
    into work because the employer ``believes the employee has symptoms of
    a contagious illness, or has been in close contact with an individual
    who has'' these symptoms. (See Sec. 3 (a), (b).)
            - This legislation does not define how the term ``directed''
            should be defined. As a result, employers could have a range of
            conversations or contacts with their employees which might or
            might not rise to the level of a ``direction''. Preexisting
            guidance contained in employer policies could be construed to
            meet this definition therefore triggering employer payment
            obligations.
            - This legislation doesn't define who can act as the employers.
            As written the determination could be made by a lower level
            supervisor that could be later revoked by someone with more
            authority.
            - The legislation leaves the determination of symptoms to the
            employers if they ``believe the employee has symptoms of a
            contagious illness.'' The legislation lacks a clear threshold
            that would be sufficient to form this conclusion. Typically,
            most employers are not medical professionals, nor do they
            usually have such medical professionals on site to make this
            determination.
            - This bill lacks protections for employee privacy rights with
            regard to an employer determining whether an employee has been
            in close contact with an individual who has such symptoms.
    Employee Compensation
         The bill calculates the rate of pay ``based on the
    employee's regular rate of pay and the number of hours the employee
    would otherwise be normally scheduled to work (sic)'' (See Sec. 3 (c)
    (2) (a).)
            - This legislation does not address how overtime pay would be
            taken into account.
            - The hours an employee might normally be scheduled to work
            might not be fixed, or set for the time that the employee would
            be out. This legislation lacks the necessary guidance to make
            this determination.
    Employer Guidance
         The Secretary is directed to issue guidelines to assist
    employers on these calculations, but no deadline for these guidelines
    is set, while the bill is supposed to take effect 15 days after
    enactment. (See Sec. 3 (c) (2) (b), Sec. 8.)
            - This legislation does not provide for the Secretary to issue
            implementing regulations to assist employers in fully
            understanding their obligations. The absence of regulations,
            and the notice and comment process to develop them, will mean
            that employers will be left to figure out how to implement this
            law on their own and heighten the risk that they will not be in
            compliance.
    Employer Termination of Leave
         The bill allows an employer to indicate to the employee
    that it no longer ``believes the employee * * * has symptoms of a
    contagious illness or poses a threat of contagion to other employees or
    to the public (sic)'' (See Sec. 3 (c) (4).)
        As noted above, employers are not typically in the position of
    making such medical determinations. Nor would they be able to examine
    the employee once they are at home, or not at work.
    Impact on Current Policies and Requirements
         The bill specifies that ``nothing in this Act shall be
    construed to in any way to diminish the rights or benefits that an
    employee is entitled to'' based on another federal, state or local law,
    collective bargaining agreement, or existing employer policy. (See Sec.
    7.)
         This provision lacks the necessary clarity to be
    effectively implemented.
         One interpretation would be that it means an employer
    would have to restore any paid leave used as a result of them directing
    an employee to stay home so that in effect, an employer would have to
    add five days to what they are currently providing.
         Another interpretation would be that an employer would not
    be able to adjust their current policy to reflect that paid leave they
    would have to provide under this bill, i.e. they could not reduce the
    amount of leave they provide from 10 days to five days.
    Sunset of Bill
         This bill is supposed to sunset two years after enactment.
    (See Sec. 9.)
         There is no history of such a benefit being enacted and
    then being removed. There is no such thing as a temporary benefit, just
    as there is no such thing as a temporary tax.
    Definition of Illness
         This bill defines a ``contagious illness'' as including
    ``influenza-like-illnesses such as the novel H1N1 virus.'' (See Sec. 10
    (1).)
            - ``Influenza-like-illnesses'' is a very open ended phrase that
            could end up meaning many conditions.
            - This bill is described as responding only to the current
            epidemic of H1N1, however that illness is not the only
            condition for which leave would have to be paid. The current
            definition would result in an overly broad application.
    Definition of Covered Employers--Safe Harbor
         This bill attempts to provide a safe harbor for employers
    that either do not employ 15 or more employees, or already meet its
    requirements. (See Sec. 10 (3) (A), (B).)
            - However, the bill does not take into account the growing
            trend by employers to provide Paid Time Off (PTO) plans. Under
            these plans employees are provided with paid leave without
            specifying the reason for its use. Such plans are becoming very
            popular as they relieve employers of the need to track multiple
            kinds of leave, and the reasons for the leave, and typically
            allow employees to receive the paid leave in compensation when
            they terminate employment. Under the current language, whether
            employers would be exempted if they offer a PTO style plan is
            not clear.
            - The bill does not make clear whether additional paid leave
            must be provided if an employee has already been provided
            leave, but has exhausted it by the time they need to be out
            under this bill.
            - The bill does not define the application of leave for
            employees that are contracted through an employment agency.
            - The bill does not specify how part time or temporary
            employees should be treated for purposes of the 15 employee
            threshold.
            - The language of (B) says that for an employer policy to
            qualify, it must not only provide five days of paid sick leave
            per 12 month period, but that this leave ``may be used at the
            employee's discretion.'' Such a requirement would disqualify
            many employer leave policies that would otherwise satisfy this
            safe harbor as employers frequently include a provision that
            leave be subject to notification, scheduling, or other
            requirements. The bill does not make clear if such requirements
            disqualify a leave policy from satisfying this safe harbor.
                                     ______

                                                     November 17, 2009.
    Hon. George Miller, Chairman; Hon. John Kline, Ranking Member,
    Committee on Education and Labor, U.S. House of Representatives, 2181
            Rayburn House Office Building, Washington, DC.
        Dear Chairman Miller and Ranking Member Kline: On behalf of the
    signed organizations and our contractors, subcontractors, material
    suppliers and employees across the nation, we would like to express our
    opposition to H.R. 3991, the Emergency Influenza Containment Act
    (EICA). Due to the adverse impact the bill will have on small business
    owners, as well as the counterproductive effect it will have on
    existing leave and benefit packages, we urge your opposition to this
    legislation.
        Employers offer compensation packages, including leave and other
    benefits, in order to recruit and retain the best employees. Our
    members are rightfully proud of the compensation packages they
    currently offer, as the benefits included in those packages are
    reflective of the realities of their industries, the preferences of
    employees and the premium business owners place on quality
    craftsmanship and a productive work environment. At the same time, the
    construction industry is facing unprecedented challenges, with an
    industry-wide unemployment rate of 18.7%, and construction employers
    attempting to create jobs are in no position to absorb another costly
    government mandate.
        The EICA would require businesses with 15 or more employees to
    provide their employees five days of paid sick leave every 12 months if
    the employer advises or directs an employee to leave or not come into
    work because it is believed that employee has a contagious illness, or
    has been in close proximity to an individual with a contagious illness.
        This legislation would become law 15 days after enactment,
    unfortunately without federal regulations, and would also sunset after
    two years. Federal regulations have a valuable place in interpreting
    federal statute, and without the input of a broad segment of both
    regulators and the regulated community, it is hard to know exactly how
    to interpret the day-to-day situations that all employers may face. In
    H.R. 3991, we are very concerned about several vague provisions that
    provide few answers, while raising many questions.
        First, it is unclear under the legislation what it means to advise
    or direct an employee to leave work or stay at home, and at what point
    the employer may recall that worker. Is an employer policy stating
    employees should stay at home when ill enough to constitute ``advise or
    direct,'' or must the employer specifically tell that employee not to
    come in? It is equally unclear when an employer may call an employee
    back to work, as employers can face liability based on what a fact
    finder may deem it believed with respect to an employee's health or
    contagiousness. Next, the lack of regulatory guidelines will
    undoubtedly create situations where employers unwittingly fail to
    adhere to the vague nature of the new statute despite their best
    efforts to do so. Additionally, it is unclear how EICA will impact
    existing leave policies. This is especially troublesome considering
    that more than 80 percent of business owners currently offer paid leave
    of some kind. It is also especially difficult in construction to
    develop a comprehensive leave policy where a large segment of the
    industry is part-time, project-based or seasonal work.
        Finally, we would be remiss if we failed to address the larger
    problem with paid leave mandates, whether related to H1N1 or not. The
    economic hardships facing our nation have acutely impacted the
    construction industry. Our industry has seen historic highs in job
    losses, with more than 1.7 million construction workers without
    employment. At a time when employers are struggling to avoid layoffs
    and business closures, imposing paid leave mandates on employers is
    unwise policy that threatens jobs and the viability of many of the
    nation's small businesses.
        As we have stated in the past, we remain ready to work with
    Congress in a constructive way to address the impact of current tax and
    regulatory policies on the ability of employers to offer the best
    benefits possible in the modern workplace. We look forward to having
    constructive discussions on these topics, but those conversations must
    begin with the recognition that onesize-fits-all mandates from Congress
    are a political rather than practical answer to a very complex issue.
        In the meantime, as the Committee considers H.R. 3991, we strongly
    encourage your opposition to this unnecessary and harmful legislation.
                Sincerely,
                       Air Conditioning Contractors of America,
                           Associated Builders and Contractors,
                            Independent Electrical Contractors,
                         National Association of Home Builders,
                      National Roofing Contractors Association,
    Plumbing-Heating-Cooling Contractors--National Association.
                                     ______

        [Whereupon, at 12:18 p.m., the committee was adjourned.]