New York Hauls Feds to Court Over Limits on Paid Sick Leave

A nurse at Inova Fairfax Hospital in Falls Church, Va., plays a game of tic-tac-toe with a patient who is in isolation due to Covid-19. (Inova Fairfax Hospital via AP)

MANHATTAN (CN) — New York’s Democratic attorney general sued the Trump administration Tuesday to block carve-outs in a rule put forth by the Department of Labor that would exclude millions of health care workers from emergency paid sick leave protections guaranteed under a coronavirus relief package.

Congress passed the Families First Coronavirus Response Act 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 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.

In a 29-page federal complaint filed Tuesday, New York Attorney General Letitia James’ office argues that a final rule put forth by the Department of Labor on April 1 adopted an especially broad definition of who would be exempted from those guaranteed paid sick leave protections under the Families First Coronavirus Response Act.

The department’s final rule 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 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.

The Trump administration did not identify any statutory basis for adopting such an expansive definition of workers, Attorney General James claims in the complaint.

“They basically carved the health care workers out of the statute,” William B. Gould IV, former chairman of the National Labor Relations Board and professor emeritus at Stanford Law School, told Courthouse News in an interview Tuesday. “If these workers can’t take sick leave, they’ll undermine the very purpose of the statute, which is to diminish or eliminate the disease which is being spread.”

The professor added, “I don’t find any basis for the Trump administration’s exclusion of these health care workers from a statute which seems to me to be plain on its face in providing important paid sick leave to workers.”

James further argues in the complaint that the Labor Department exceeded its authority under the Families First Coronavirus Response Act by prohibiting employees from taking their paid sick leave or emergency family leave intermittently absent their employer’s consent, as well as conditioning eligibility for paid sick leave or emergency family leave on an employee having previously provided documentation to the employer.

“The Trump administration’s rule makes it harder for New Yorkers and Americans throughout the country to claim these paid benefits, which unnecessarily puts more workers at risk of exposure to Covid-19,” the attorney general said in a statement Tuesday. “The paid sick leave and emergency family leave provisions of the FFCRA were enacted to protect public health and to provide economic security to working families.”

In addition to the federal lawsuit in Manhattan, James’ office filed a motion for summary judgment requesting that the Southern District of New York block the Trump administration’s regulations and restore the Families First Coronavirus Response Act to its intended effect.

“The message of the Act is clear: stay home, put your family first, and be assured you will not suffer unfair economic harm as a result,” the motion states.

In a statement Tuesday, a Labor Department official called the attorney general’s lawsuit “an unnecessary distraction that the department will address in court while simultaneously ensuring paid leave for workers.”

“In this time of crisis, the President and Congress jointly acted swiftly to provide workers of small- and medium-sized businesses with paid leave,” said Cheryl Stanton, administrator of the department’s Wage and Hour Division. “The Department of Labor acted just as swiftly to implement the letter and spirit of the law through rulemaking, compliance assistance, and outreach.”

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