MANHATTAN (CN) — The Department of Labor on Wednesday defended a new rule that New York’s attorney general says carves out an especially broad definition of health care providers who would be excluded from paid sick leave protections guaranteed under a coronavirus relief package.
During a teleconference hearing Wednesday in Manhattan federal court, an attorney for New York Attorney General Letitia James acknowledged Labor Secretary Eugene Scalia has the statutory authority to exclude “certain health providers,” but said the expansive definition goes too far.
“The final rule goes far broader than that the narrow delegation and instead sweeps in anyone employed at any institution with any connection to health care, plus any employer who contracts with any such institution, and there’s just nothing in the text of the FFCRA or the FMLA that supports that extremely broad definition,” attorney Matthew Colangelo said.
Congress passed the Families First Coronavirus Response Act, or FFCRA, on March 18 in response to the economic and public health disruption caused by the Covid-19 pandemic. Covering an estimated 61 million workers — nearly 40% of the American workforce — the law requires job-protected emergency family leave and paid sick leave for employees unable to work because of the coronavirus pandemic. It guarantees up to 100% of a person’s salary, capped at $511 per day, for those affected by the virus.
Families also get up to 12 weeks of paid family and medical leave at a reduced percentage of their daily earnings—a benefit only select Americans are afforded through their employers. That measure provides up to $200 per day, per person.
In a 29-page federal complaint filed last month challenging the department’s final rule, James’ office argued that it adopted a particularly expansive definition of who would be exempted from those guaranteed paid sick leave protections under the FFCRA.
The rule, put forth on April 1, allows for the denial of the law’s paid sick leave and emergency family leave benefits to large classes of otherwise eligible workers by including them in an unlawfully extensive definition of “health care provider,” the complaint alleges.
The Family and Medical Leave Act, passed in 1993, codified exempted health care providers into categories — a doctor authorized by a state to practice medicine or surgery, and any other person determined to be capable of providing health care services.
The Labor Department’s rule, by contrast, would potentially exclude up to 9 million workers in and adjacent to the health care industry by adopting the wider definition of “anyone employed at any doctor’s office, hospital, health care center, clinic, postsecondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or…any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”
The rule would also exempt from paid sick leave protections any support and operations workers for an entity that contracts with the medical providers, as well as any employees of a company that provides medical services, produces medical products, “or is otherwise involved in the making of Covid-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.”
According to the New York attorney general’s complaint, the sweeping definition would exclude teaching assistants and university librarians, employees who manage the dining hall or information technology services at a medical school, the cashier at a hospital gift shop, and anyone employed by any contractor to any entity listed in the rule, including all employees of a payroll processing firm or vending-machine resupplier.
In a brief filed last week, attorneys for the Labor Department argued that the broad definition of health care provider was designed to effectively deliver essential health care during the pandemic by ensuring that hospitals have adequate staff.
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