Preemption, Paid Leave, and the Health of America

As the United States continues its response to a seemingly inevitable coronavirus epidemic, experts in law and public health are stressing the importance of supportive social safety nets to ensure an equitable and fair response to the virus’s spread.

If you are one of the nearly two million Americans who works for minimum wage, for much of the service industry, or in the contingent labor force, a situation that forces you to stay home from work – because of illness, or government- or self-imposed quarantine or social distancing measures – could create dire financial circumstances and inhibit measures to mitigate the impact of an infectious disease like COVID-19.

Evidence shows that paid sick leave laws can not only reduce the spread of contagious illnesses, but also increase employment, productivity and income stability, and save cities money in health care costs. According to the Institute for Women’s Policy Research, if all US employees had paid sick leave, it would prevent 1.3 million emergency room visits and save at least $1.1 billion in medical costs annually.

We have identified 20 states that prevent their local governments from passing laws that require employers to provide paid sick leave. Eleven of those have statewide paid sick leave laws, which are often weaker than what local governments would have passed. The other nine states have no paid sick leave laws, and also block localities from enacting their own — leaving residents without legal protections when they get sick.

Austin, Dallas, and San Antonio, Texas, have been attempting to pass such paid leave ordinances for all workers, but they’ve faced issues in court and in the legislature. Research indicates that these laws can be especially impactful for low-income workers, women, and less educated individuals. That’s particularly troubling given many in this state fit these demographic profiles.

State governments use the power of preemption, a legal strategy that allows upper levels of government to restrict or even prevent communities from self-governing. And, of course, much of this behavior is directly tied to special interest lobbying, often at the behest of powerful industries and anti-regulation activist groups like the American Legislative Exchange Council (ALEC), focused on taking away employees’ rights.

Preemption is not inherently problematic. State governments have had a powerful positive impact by preempting exclusionary zoning laws and domestic violence laws that prohibit local governments from evicting people for calling 911. It becomes a problem when state government leaders block evidence-based local laws or prevent innovative, and often necessary, experimentation. This kind of blocking has been called a “quiet threat to public health” because it stops cities from enacting potential solutions to local threats, inequity or health disparities.

For the first time, our research has now documented the surprising scale of the problem. We identified more than 250 such laws across 12 policy areas in all 50 states. Preemption is not only more prevalent than we thought, but more troubling.

While preemptive laws clusters around some unsurprising topics — firearms, employment, and housing laws — there were many laws that restrict a local government’s ability to set, assess, or levy property taxes. With 100 Americans killed daily by guns, and a massive housing crisis that sees 1 in 20 Americans living in a place classified as inadequate or severely inadequate, cities are also facing social and economic challenges that require economic resources.

Cities provide critical resources like schools, emergency services, local economic development, even housing. Yet they must cope with unfunded state (or federal) mandates, and their ability to raise money by taxing themselves is often constrained by state preemption. Local governments receive a good proportion of their funding from state and federal government transfers, but those intergovernmental transfers are on the decline.

Our research on preemption shows the harmful effects such state interference can have on public health and the services cities can provide. It is time to allow cities, towns and villages to innovate and respond to the needs of their communities, before another threat such as coronavirus arrives again.

This project is a collaboration between the Center for Public Health Law Research and the National League of Cities, funded by a grant from the Robert Wood Johnson Foundation. 

Temple University Center for Public Health Law Research

Temple University Center for Public Health Law Research

Based at the Temple University Beasley School of Law, the Center for Public Health Law Research supports the widespread adoption of scientific tools and methods for mapping and evaluating the impact of law on health. It works by developing and teaching public health law research and legal epidemiology methods (including legal mapping and policy surveillance); researching laws and policies that improve health, increase access to care, and create or remove barriers to health (e.g., laws or policies that create or remove inequity); and communicating and disseminating evidence to facilitate innovation.

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