[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







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                                  ______

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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.
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    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.]

                                 
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