Sick leave policies get more attention after threat of railroad strike

Katie Wedell, USA TODAY
Wed, September 21, 2022 

A recently dodged transportation crisis between the country's biggest railroads and the employees who work for them put the question of sick leave, and who does and doesn't get it in America, squarely at the forefront of national debate.

One of the major sticking points in negotiations between the nation’s railroads and the unions representing railroad workers this summer was a request for paid sick leave.

Because more than 95% of employers offer at least some paid sick days to their employees, many outsiders to the industry were shocked to learn that railroad employees didn’t have that benefit in their contracts.

The ability to take a sick day with no repercussions is a benefit many workers take for granted, but it's not guaranteed by law in most parts of the country.

Because of the coronavirus pandemic, HR experts said more companies are paying attention to their sick leave policies as important recruitment tools because workers are demanding those days.

The 12 rail unions and a committee representing 30 railroads came to tentative agreements early Thursday last week to avoid a strike that would have kicked off Friday and parked one-third of the nation's freight trains, plus many commuter trains.

President Joe Biden stepped in personally to avoid a work stoppage that would have exacerbated supply chain bottlenecks and caused major economic disruptions.

The unions still need to vote in the coming weeks on whether to accept the new contracts.

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How common is it for workers to have zero sick days?

About 96% of American employers offer some form of paid sick leave to their employees, according to the Society for Human Resource Management.

The number of days offered ranges from one day a year to unlimited.

“But there are industries where workers have no days designated as sick leave,” said Johnny Taylor Jr., SHRM president and CEO.

All workers, regardless of industry or union representation, have the right to take unpaid leave under the federal Family and Medical Leave Act without the fear of losing their jobs.

Only 14 states have laws guaranteeing paid sick leave, but those laws often exclude workers in some industries, including government employees as well as railroad and airline employees.

The workers who don’t get any sick days tend to be low-wage workers and those working part-time, said Eileen Appelbaum, co-director of the think tank Center for Economic and Policy Research.

“Generally speaking, if you're not either low-paid or part-time, your employer provides paid sick days and certainly more than one,” she said. “It's not unusual to have five or seven paid sick days in a year and to be able to carry some number of them over.”

Eileen Appelbaum, co-director of the Center for Economic and Policy Research

Railroad work clearly differs from a desk job in that trains can’t run without key personnel.

But other industries with similar staffing needs, such as commercial airlines, have paid sick time built into their employee contracts.

Pilots accrue paid sick time that goes into a bank, according to contracts negotiated by the Air Line Pilots Association, International.

Taylor said he was surprised rail workers hadn’t negotiated paid sick time into their contract before now.

“At the end of the day, they're covered by a union,” he said. “As much as they would like to point to the fact that they don't have it, frankly, they just didn't negotiate that.”

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Limited sick leave can hurt employee recruitment

Appelbaum said the lack of sick leave could be part of the reason the rail industry, which pays high wages, is having trouble recruiting workers.

“I mean this is an industry that has a problem with staffing, or so they claim,” she said. “I don't think we have to look very far to see why that's a problem.”

Many other industries have redundancy employees who can do more than one job and who can be available to work when others call in sick, she said.

“You need to have other people who can step into that job or a pool of people who say that they're available,” Appelbaum said. “There might have to be a premium pay for stepping in at short notice or something like that.”

Sick time is just one element of a benefits package that industries use to recruit workers to otherwise undesirable jobs, Taylor said.

“It is a way to differentiate to make an ‘unsexy' job or industry more attractive,” he said.
How much sick leave do most jobs give?

SHRM, the human relations industry group, says there is a trend toward giving employees a bank of paid days off that can be used for any purpose – a sick day, a vacation or a personal day.

Their numbers show that’s what 67% of employers offer.

“We know from the pandemic that if a sick person comes to work because they don't have enough sick days, they then bring it to the workplace and get other people sick,” Taylor said.

Society for Human Resource Management President and CEO Johnny C. Taylor, Jr.

It’s not in the company’s best interest to lose multiple workers to sickness, but there’s a flip side to offering paid sick days.

“We don't want people, when you give them a certain number of days for sick days, to feign sick just because they don't want to lose (those days),” Taylor said.

With a PTO system in which a day can be taken for any reason, it removes the need to lie about or prove illness to take a sick day, he said. And it makes it possible for people to take days to deal with their mental health without having to explain.

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About 6% of employers don’t designate a specific number of PTO days at all but rather leave it up to the employee and their manager in what’s called unlimited, open or managed time off, according to SHRM.

More than a dozen states and some counties and cities have passed legislation guaranteeing workers paid sick leave, according to advocacy group A Better Balance. But many of those laws exempt railroad workers specifically, in addition to government employees and some others.

For example, a New Mexico law that took effect July 1 allows workers to earn and take up to 64 hours of paid sick time a year.
Why didn't railway workers get the same type of sick leave?

But there are caveats. Laws like New Mexico's, which does not apply to “flight deck/cabin crews subject to the Railway Labor Act, certain railroad workers,” can have limits

The Railway Labor Act governs labor relations in the railroad and airline industries and therefore is written in as an exemption to many employment-related laws.

Instead of paid sick days, union members say they’ve been operating under various complex attendance policies that did not guarantee the ability to take a day off for illness or a doctor’s appointment without punishment.

A Better Balance is pushing for a federal sick leave law that would guarantee workers across the country the protected right to take time away from work for illness in their family without losing their jobs.

The Healthy Families Act would guarantee workers nationwide the right to earn up to seven paid sick days a year. The bill was last reintroduced in the House and Senate in 2021.
Rail unions say their sick leave policy was unfair

The railroads argued their attendance policies already provide ample opportunity for workers to call in for illness or a medical appointment without labeling a specific number of days as paid sick leave.

Employees who are essential to train operations can temporarily remove themselves from service, or “mark off,” for any reason, including sickness or personal reasons, said Ted Greener assistant vice president for public affairs for the Association of American Railroads, in an email.

“Mark-off days are not penalized. Some railroads use a point system to track these days off, which is not an issue unless employees reach zero points,” Greener said. “Sick days are not explicitly called such in this context, but they operate in a similar manner.”

But the unions have called the points system demoralizing.

Dennis Pierce, president of the Brotherhood of Locomotive Engineers and Trainmen, said the turning point in negotiations last week came when the unions “finally convinced” the railroad companies to provide workers sick time.

The tentative agreement members of the 12 rail unions must vote on this week includes only one paid sick day, far short of the unions’ goal of 15.

But Pierce said even a single day is an improvement from recommendations by a Presidential Emergency Board that Biden assembled in July, which advised the unions to drop the sick leave question and handle any attendance policy disputes in the grievance and arbitration process.

In addition, the deal gives engineers and other workers voluntary days off – allowing their work schedule to resemble something closer to five days a week rather than a full week – and guarantees they won’t be fired for visiting physicians.

“That’s a big win for us,” he told USA TODAY in an interview. “We actually, for the first time ever, negotiated contract language that prevents the railroads from punishing our guys under the attendance policy to go to the doc. That's been a critical issue.”
How does the Hi-Viz points system work?

One of the attendance policies that uses points, and has been criticized by the rail unions, is BNSF Railroad’s Hi-Viz policy.

Under the system implemented in February, workers are given a bank of 30 points. If they miss a call to work an assignment, or can’t work because of illness or family emergency, they lose points.

The number of points lost depends on the type of employee, day of the week and type of assignment, but it typically ranges from 2 to 15 points for a 24-hour missed day.

Points are not affected by rest days required when an employee works a certain number of consecutive hours.

Employees can earn back 4 points by being available for work for 14 days straight, according to the policy. They don’t necessarily work all those days in a row; they just have to be available to work.

Anyone who losses all their points can be punished or terminated.

After much criticism of the system, the railroad revised the policy on June 1 and said employees would no longer lose points if they missed a call to work the day before or after a scheduled vacation. More ways to earn bonus points were also added, including rewarding those available to work most often with 7 points a month.

The unions and their supporters said those changes were not enough to fix a bad attendance policy.

“These changes do nothing to address the policy’s fundamental flaws," the Transportation Trades Department of the AFL-CIO said in a statement. "For example, allowing a worker to bank a few extra points will not offset the massive 15-point cost of a worker missing one high-impact day.”

Instead of addressing worker fatigue, the unions argued the changes incentivized exhaustion because they rewarded those who worked the most hours with more chances to earn points.

Neither iteration of the policy allows for an employee to take a paid sick day with no consequences, which is what the unions demanded during contract negotiations.

An AAR spokesperson said in a statement that the organization representing the major freight railroads is pleased with the tentative agreement.

"The agreements also address several scheduling and related matters, including time away from work for routine and preventive medical care, and provide that certain medical absences are not counted toward normal attendance handling," the statement said.

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This article originally appeared on USA TODAY: Railroad strike hinged on lack of paid sick leave. How common is that?