Thursday, March 3, 2005 | 11:05 a.m.
A Washoe County District Court decision that awarded millions after finding that sick hotel-casino workers who opted to work rather than take unpaid time off contributed to a 1996 virus outbreak is not likely to change benefits policies for most employers, benefits and medical experts say.
The Nevada Supreme Court last week dismissed an appeal by the Reno Hilton, which was hit with a $25.2 million punitive judgment for the outbreak of the Norwalk-like virus that caused hundreds of employees and guests to get sick in May and June 1996.
The judgment is the first part of a two-phase case and the state court said the full case must be decided before it would intervene. In the first phase, a jury found that the Hilton's policy of unpaid sick leave for its employees caused the outbreak of the virus that caused vomiting and diarrhea. The lawsuit against the Hilton contends the hotel's policy forced employees to work while they were sick and that helped spread the illness.
Rick Vaillancourt, a benefits consultant and past president of the Southern Nevada Human Resource Association, said employers should have the right to choose whether sick time is paid or unpaid.
But if they create an environment that forces people to work when they are sick, that is "contrary to a healthy culture," he added.
Employees should be allowed to use their best judgment when determining if they work while they are sick, regardless of whether their sick time is paid or unpaid, he said, adding that paid sick time is not frequently abused.
Dr. Michael Colletti, president of the Clark County Medical Society, disagreed and said paid sick leave is often abused.
"It was intended if someone was sick they would be able to take off a day and be paid," he said. "Employees now feel they're entitled to those days whether they're sick or not. Employers have a business to run so they would rather have employees (at work) if they're not severely sick."
He said employers have to balance the threat to public health and the abuse of sick leave, which is not something the courts can decide.
"I wouldn't put much store in what the courts have to say these days," he said about the jury's finding. "The courts come out with some ridiculous rulings. If they want to look at one case where a virus spread around and extrapolate that across the country (that) is a stretch."
Nearly 60 percent of employers surveyed nationally in 2004 said they offered paid sick leave and 29 percent offered paid time off, which combines a set number of paid days off that can be used for sick time, vacation or personal days.
Casinos built in the past few years or casinos that have obtained their first union contracts in recent years tend to have "paid time off" or "flex time" rather than specific sick leave or vacation benefits, said Jim Bonaventure, director of legal affairs for the Culinary Union in Las Vegas.
Under this system, employees generally accumulate hours that they can use for just about any purpose, including sick leave, holidays, vacation and personal days.
Older properties -- which make up the majority of Strip casinos -- tend to offer a specific number of vacation days and no paid sick leave, Bonaventure said.
For Culinary and Bartenders union members, paid sick leave isn't a hot-button topic like health care, wages and work conditions, Bonaventure said.
"It just wasn't a priority," he said. "There are so many other things that are on the table during negotiations."
Members of the Culinary and Bartenders unions have a leave of absence policy written into their contracts that offers up to six months of unpaid leave with health benefits. Nonunion workers also have a leave of absence benefit under the Family Medical Leave Act, which offers workers up to 12 weeks of unpaid leave with benefits.
Some of the biggest companies on the Strip, including Boyd Gaming Corp., Harrah's Entertainment Inc. and Caesars Entertainment Inc. offer paid time off for all of their workers.
In the case of MGM Mirage, the company's MGM Grand operating unit offers paid time off. But the company's Mirage Resorts unit, acquired in 2000, offers vacation time and eight holidays, with one of the holidays available at any time and for any purpose.
An increasing number of employers offer paid-time off plans in lieu of designated sick days, said Sandy Liechty, a benefits specialist and spokeswoman for the Southern Nevada Human Resource Association.
"That's what the larger employers are going to: P.T.O.," she said. "(But,) the work force of today feels that if they don't come to work, their job could be in jeopardy. This is not just a Las Vegas symptom; it's symptomatic across the United States."
"I can't speak for the Reno Hilton, but unequivocally I'm not aware of one employer that would say you must come to work if you are ill," she said.
One of the pressures that may compel hospitality employees to work is that they rely heavily on tips, which they do not receive if they stay home.
"They don't live off their wages," Liechty said, adding that housekeepers and some hospitality employees rely less on tips.
Tim McFarling, director of faculty human resources at UNR, said paid sick time varies by industry and has a varying impact.
For example, if an employee makes $60 a day and he is sick, he might earn the $60 if he has paid sick leave.
But, if the employee is "making an additional $200 in tips that day, even if you have the sick pay, you still may choose to go because of the other lost income," McFarling said.
In the grocery industry, most companies' policies require an employee to be out sick for two unpaid days before their paid sick time takes effect on the third day, he said.
"The origin of sick leave was intended to be for long-term illness and that's why you see most people put a cap of six to eight weeks," McFarling said. "The original intent was if you had to be out on surgery or maternity leave, you would take that in a block of time."
He said the jury's decision blaming the hotel for its policy made him "a little disconcerted."
"Basically the court's saying 'you in effect have to pay sick leave,' which in effect the employer may not be able to afford to do," McFarling said.
Dr. Lawrence Sands, director of community health services at the Clark County Health District, said there are multiple conditions such as the Norwalk-like virus, or norovirus, and influenza that can be "very contagious and difficult to control in terms of stopping (the spreading) from person to person."
"You have to take very stringent control measures if you want to interrupt transmission," Sands said. "Even without outbreaks, we always recommend if you're sick, especially during flu season, to stay home so they're not spreading it to their coworkers and people in their community."
The sick individual also benefits from staying home because they are sick for a few days versus a day here and there over several weeks, which can be a problem for employers, he said.
When outbreaks such as the Norwalk-like virus occur, the Clark County Health District -- which investigates such outbreaks -- suggests employers weigh the costs of having employees stay home versus the cost of spreading the illness, Sands said.
Las Vegas, like other large cities with an influx of visitors, is vulnerable to large-scale outbreaks. In fact, there have been two virus outbreaks in Las Vegas since the Reno outbreak.
"Even without this judgment, this is an issue for most employers, particularly those who are serving the public," Sands said, adding that employers should have a strategy in place in advance for employees and the public.
About 1,700 people became sick with the Norwalk virus in December 2003 at downtown casinos owned by Boyd Gaming. The virus appeared to be concentrated to visitors from Hawaii who were traveling in a charter group and staying at Boyd's California, Fremont and Main Street Station properties.
In October 2004, the Flamingo reported an outbreak of the Norwalk virus that struck about 130 employees and guests at the property.
Sun reporters Liz Benston and Cy Ryan contributed to this story.
archive
