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NY sues Trump administration over workers’ rights; PEF asks state to afford same rights to members

By KATE MOSTACCIO

The Federal Families First Coronavirus Response Act (FFCRA) promised New Yorkers job protections but when rules put into place by the U.S. Department of Labor (USDOL) jeopardized those protections, New York State Attorney General Letitia James was quick to file a lawsuit to dial back overreach by the Trump administration.

The lawsuit alleged, in part, that the USDOL had stretched the definition of health care provider to encompass an overbroad range of employees, qualifying them for an exemption and thus denying many workers statutorily protected leave benefits. The lawsuit also alleged the USDOL unfairly prohibited intermittent use of protected leave.

On Aug. 3, the U.S. Southern District Court sided with New York State.

With that court victory fresh in mind, why, then, has New York State not been affording PEF members similar protections under similar circumstances?

On July 9, PEF filed a lawsuit against New York on behalf of members asserting many of the same legal arguments as the attorney general in New York’s federal FFCRA lawsuit after numerous complaints from members that the state has been irrationally and improperly denying FFCRA leave in several New York State agencies.

The USDOL’s guidelines broadly define health care providers as anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary 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 similar institution, employer or entity.

“This broad definition can essentially exempt an entire facility, and all PEF members working within that facility, from the leave provisions afforded to them under the federal legislation, even if their primary duties do not involve frontline COVID response,” said PEF President Wayne Spence. “We are fighting for our members to be given the same respect and protections the state is demanding for all New Yorkers. These regulations can be used to deny vital financial support to our members during an unprecedented crisis and exposing workers to unnecessary spread of COVID-19.”

The District Court’s ruling laid out clear reasoning for why the USDOL regulations are wrong and should provide a roadmap for New York in dealing with its own workforce.

The court ruling stated that USDOL’s FFCRA rules wrongfully excluded employees “whose roles bear no nexus whatsoever to the provision of healthcare services, except the identity of their employers” from the protections afforded under the FFCRA.

On the issue of the use of intermittent FFCRA leave, the court rejected a requirement that employees obtain employer consent before taking intermittent leave for qualifying conditions that do not implicate an employee’s risk of viral transmission, such as caring for a child whose school has closed due to COVID-19. The court also invalidated the requirement that an employee provide documentation of a qualifying reason prior to taking leave.

“Ultimately, the court’s decision underscores PEF’s position and only serves to highlight the state of New York’s hypocrisy in depriving PEF members of a benefit under a rule the state asserted was invalid,” said Spence. “PEF will continue to take all appropriate actions to enforce our members’ rights under state and federal law.”