AG James sues Trump administration, says paid sick leave rule too narrow

College librarians among those potentially excluded from receiving sick pay, James says

April 17, 2020 Rob Abruzzese

Attorney General Letitia James is suing the Trump administration after she said the country's first-ever federal law guaranteeing paid sick leave is being interpreted by the Department of Labor too narrowly. Photo: Rob Abruzzese/Brooklyn Eagle

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Attorney General Letitia James filed a complaint for declaratory and injunctive relief in the Southern District of New York against the Trump administration, which she says recently passed a new rule that unlawfully narrows workers’ eligibility for emergency family leave and paid sick leave guaranteed by the Families First Coronavirus Response Act.

According to James, new regulations put forth by the U.S. The Department of Labor contradict the Families First Coronavirus Response Act (FFCRA), which means families could be denied financial support while trying to live out the pandemic.

“As the efforts to stem the spread of COVID-19 continue, I will continue to leverage the powers of my office to serve as a frontline defense for protecting the rights of people, especially those who need a hand up at this time,” said Attorney General James.

“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,” James continued. “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. I will fight to prevent that from happening.”

The FFCRA was the first federal law that mandated the right to paid sick leave for private sector workers in the U.S., a feature that at least 19 other countries already have, according to the Center for Economic and Policy Research.

Enacted on March 18, it includes provisions that require job-protected paid sick leave and emergency family leave for employees unable to work due to the coronavirus. It is estimated to cover approximately 61 million employees and was meant to encourage sick workers to stay home to prevent the spread of COVID-19.

Then, on April 1, the Department of Labor published a rule to implement the paid sick leave and family leave requirements. James says the rule doesn’t provide for laid-off employees under the “work availability” requirement, allows a broad definition of who is a “health care provider” and thus exempt, and too easily allows small businesses to get out of giving sick leave and family leave to their employees.

“The Final Rule adds a non-statutory constraint to an employee’s entitlement to emergency family leave, limiting employee eligibility to those circumstances where the employer determines in the employer’s sole discretion that the employer has work for the employee,” James wrote in the 29-page complaint.

“Nothing in the text of the FFCRA limits an employee’s entitlement to paid sick leave to those circumstances when the employer has work for the employee to perform on each day,” James continued in the complaint. “The Department’s implementation of these provisions of the FFCRA unlawfully authorizes employers to deny workers their statutory right to emergency family leave and paid sick leave by unilaterally determining when the employer has work available on each of the days that the employee is otherwise categorically eligible for leave.”

The provision denying health care workers includes a line that denies anyone “capable of providing health care services,” and the DOL is allegedly translating that to include podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and even people nobody associates with health care, such as college librarians.

“The Final Rule’s definition of ‘health care provider’ for employee exclusion purposes expands that term far beyond both its plain meaning and the FMLA definition, to include — for example — a teaching assistant or librarian at a university; 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 Final Rule, including all employees of a payroll processing firm or vending-machine supplier.”

There are other portions to the rules that James takes issue with in her complaint. For instance, employees who are teleworking are only eligible to take sick leave in “one continuous period.”

“By limiting the availability of paid sick leave, the Rule likely will cause more people to become infected with coronavirus, and thus cause New York to experience more uncompensated care costs,” James wrote. “As the Department of Labor has long acknowledged, ‘[m]ultiple studies have shown that paid sick leave greatly reduces the chance of employee injury and/or exposure to illness.’”