Study sets new benchmark for sick leave enforcement

New York City's labor investigators have a new standard for spotting employers who may be illegally denying workers paid sick leave. 

A report released Aug. 6 by the city's Department of Consumer and Worker Protection and the Harvard Kennedy School establishes what officials say is the first national benchmark for paid sick leave usage. The study concludes that about half of workers in the private sector with access to paid sick leave use it at least once each year and that employers whose records show lower usage rates are likely creating barriers or intimidating workers to prevent them from taking sick days.

"It's always a challenge when you're doing law enforcement... how are you going to make sure these laws actually have force?" DCWP Commissioner Sam Levine told The Chief Wednesday. "It can be really hard to have visibility into that. So what this tool is really intended to do is say, 'Look, here's the benchmark.'"

Rather than relying solely on written workplace policies, Levine said investigators can compare an employer's payroll records against expected leave usage rates and look more closely at workplaces where few employees are taking protected time off.

"If you're seeing significantly lower percentages of people taking time off... that is smoke to kind of dig a little deeper," Levine said.

'Proof of the near-universal need for paid sick leave'

The study analyzed responses from more than 11,600 private-sector workers in the federal National Health Interview Survey and found that 50 percent of workers with paid sick leave took at least one day off because of their own illness in the previous year. 

Researchers stress that the figure is conservative because it excludes leave taken to care for family members, partial-day absences and other legal reasons, meaning actual usage should be considerably higher. Sick leave usage ranged from 40 percent in mining fields to 60 percent in education, while rates among full-time and part-time workers differed only slightly, undermining employer arguments that workers simply do not need to use leave.

The report's co-author and DCWP labor economist, Michael Papadopoulos, said he expects the methodology to be adopted beyond New York City, where paid leave protections have expanded in recent years under the city's Protected Time Off Law.

"Not only is this report proof of the near-universal need for paid sick leave, it's a powerful tool that municipalities nationwide can use to ensure that an essential worker right is upheld," Papadopoulos said.

The report argues that payroll records showing unusually low leave usage can provide investigators with an objective starting point for enforcement. Agencies can compare the percentage of workers who actually used protected time off with the percentage expected to use it based on national industry averages, helping identify employers where access to leave may have been illegally suppressed. 

Levine said the findings reinforce concerns long voiced by labor advocates that retaliation and workplace culture often prevent workers from using leave. He said DCWP has spoken with employees at large companies who reported facing pressure or retaliation after requesting protected time off, underscoring that barriers to using leave persist even where employers technically provide the benefit.

The report cites earlier research showing that nearly 40 percent of workers in places with paid sick leave still report lacking access to the benefit, while many employees who do have leave continue working because they fear discipline, cannot find shift coverage or are pressured by supervisors.

Levine also said violations of paid sick leave laws can serve as an indicator of other violations. Employers that fail to comply with protected time off requirements often have other labor law violations, he said, including wage-and-hour, predictable scheduling and reasonable accommodation issues.

The report's other co-author, Daniel Schneider, a professor of social policy at Harvard, described the importance of such a study given the lack of strong federal policy for sick leave. 

“In the absence of any Federal provision of Paid Sick Leave, states and cities, like New York, have led the way in legislating this vital benefit," he said. 

"But, elected officials cannot assume that the presence of the law will automatically translate into broad tangible benefits for working people. This report aims to provide a resource for NYC DCWP and other agencies around the country in their work to ensure meaningful compliance and effective enforcement so that Paid Sick Leave laws really do support working families."