Labor Department Rapped on Limits for Workers Getting Virus Leave

Medical personnel work in the emergency department at NYC Health + Hospitals Metropolitan on May 27. (AP Photo/John Minchillo)

MANHATTAN (CN) — New York brought a successful challenge to federal guidelines said to unduly restrict paid leave for those out of work due to Covid-19. A federal judge ruled several aspects of the rule invalid Monday.

“This extraordinary crisis has required public and private entities alike to act decisively and swiftly in the face of massive uncertainty, and often with grave consequence,” U.S. District Judge J. Paul Oetken wrote in a 26-page opinion. “But as much as this moment calls for flexibility and ingenuity, it also calls for renewed attention to the guardrails of our government. Here, DOL jumped the rail.”

Labor Department officials crafted the rule here on April 1, implementing the legislation passed weeks earlier in Congress, the Families First Coronavirus Response Act.

Later that month, New York’s Democratic attorney general filed suit, accusing the Labor Department of having woven restrictive carve-outs to exclude millions of health care workers from emergency paid sick leave protections that the coronavirus relief package otherwise provides.  

Under the rule’s overly broad definition of “health care provider,” for example, an English professor, librarian or cafeteria manager at a university with a medical school would all not qualify for paid sick leave, forcing these individuals to choose between taking unpaid leave and work while sick. 

Judge Oetken granted New Yorn partial summary judgment Monday, striking down among other things the government’s sweeping definition of “health care provider. “

“The Final Rule’s definition is vastly overbroad … in that it includes employees whose roles bear no nexus whatsoever to the provision of healthcare services, except the identity of their employers, and who are not even arguably necessary or relevant to the healthcare system’s vitality,” Oetken wrote. “Think, again, of the English professor, who no doubt would be surprised to find that as far as DOL is concerned, she is essential to the country’s public-health response. The definition cannot stand.” 

Wlliam B. Gould IV, a Stanford law professor, found Judge Oetken’s ruling “meticulous and persuasive.”

“It would be illogical to give it the breadth that the Trump administration had tried to do,” Gould said in a phone interview Monday afternoon.

“A different interpretation of work-availability would have just tied the statute up in knots of litigation,” added Gould, who is also a former chairman of the National Labor Relations Board.

New York Attorney General Letitia James celebrated the ruling Monday. “This is a major victory for workers across New York and our entire nation,” she tweeted.  

Oetken did side with the Labor Department on one issue: its prohibition on intermittent leave. “An employee taking leave for an intermittent-leave-restricted reason must take his or her leave consecutively until his or her need for leave abates,” the judge found. “But once the need for leave abates, the employee retains any remaining paid leave, and may resume leave if and when another qualifying condition arises.” 

Meanwhile the Obama-appointed judge granted the state summary pertaining to a work-availability provision and the requirement that an employee furnish documentation before taking leave. 

Covering an estimated 61 million workers — nearly 40% of the American workforce — the Families First Coronavirus Response Act 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 will 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.  

The Department of Justice, which represented the Department of Labor in filings and oral arguments in the case, declined to comment on the ruling.

In a May response brief, 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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