Thank you for soliciting ideas and comments from the public regarding implementation of the Families First Coronavirus Response Act (FFCRA). The National Domestic Workers Alliance (NDWA) is the nation's leading voice for dignity and fairness for the millions of domestic workers in the United States. Founded in 2007, NDWA works for the respect, recognition, and inclusion in labor protections for domestic workers, most of whom are women. Our members—nannies, house cleaners, and home care workers—are on the front lines of this public health emergency as they provide care in private homes.
Domestic workers urgently need the ability and the financial means to take time off work to care for themselves and their families. We urge you to apply the FFCRA as broadly as possible so that all workers are protected. The COVID-19 crisis has shown that our nation's public health depends on each and every person's ability to stay home when necessary.
1. The Department should narrowly apply employee exceptions.
Any regulatory exceptions for "certain health care providers and emergency responders," Public Law No. 116-127 §§ 3102, 5111(1), should narrowly define the type of domestic worker that may fall under the exception. With respect to health care providers and emergency responders providing domestic worker services: 1) in-home child care providers or nannies should not be considered a de facto part of the essential work force or "emergency responders," and therefore should not be required by their employers to go to work; and 2) home health care aides caring for the sick, the elderly, and people with disabilities may be considered health care providers and emergency responders. However, because they are at a particular risk for COVID-19 exposure during transit and in their workplaces, communities, and homes, the Department should clarify that the FFCRA allows workers to take intermittent leave, providing employers and employees flexibility to manage care for themselves, their families, and the employer's obligations. The FFCRA does not include any limitations on employees' rights to take the new emergency Family Medical Leave Act (FMLA) leave on an intermittent basis. Therefore, guidance or regulations should clarify that home health care aides have the right to use leave under the new 29 U.S.C. § 2612(a)(1)(F) intermittently as needed, consistent with the current intermittent use requirements. 29 U.S.C. § 2612(b)(1) (providing for qualifying exigency leave); 29 U.S.C. § 2612(a)(1)(E).
In addition, domestic workers who are deemed emergency responders as well as others who choose to continue working deserve to be adequately educated and trained on prevention measures to protect themselves and the patients they care for. And, all domestic workers should have financial security that is provided through paid sick and family leave regardless of whether or not they are deemed emergency responders. Domestic workers earn very low wages and struggled with financial insecurity long before the COVID-19 crisis. They typically cannot afford to take any unpaid time off work, even when they are sick. Without paid sick time and paid leave, domestic workers will be forced to choose between keeping their families and employers healthy, and paying for the very basics like food.
2. The Department should narrowly apply employer exceptions.
Any regulatory exceptions for "small businesses with fewer than 50 employees," Public Law No. 116-127 §§ 3102, 5111(2), should be narrow and based on the unique circumstances of a particular business. The statute limits these exceptions to situations where "the imposition of [the FFCRA's] requirements would jeopardize the viability of the business as a going concern." Id. §§ 3102, 5111(2). The singular term, "the business," is consistent with an individualized review. Moreover, a determination that the FFCRA's requirements would jeopardize the business's viability requires an analysis of the particular business model and assets. Based on this statutory language, it would be inappropriate for regulations to exempt whole industries or categories of business.
The domestic work sector, in particular, has a long history of exclusion from basic labor protections at every level. Domestic workers were, and in some cases remain, excluded from major federal employment legislation, from the Fair Labor Standards Act (FLSA) to the Occupational Safety & Health Act to the National Labor Relations Act. The Department should not prolong that history by excluding our sector from any part of the FFCRA. Domestic workers are among the most vulnerable to the COVID-19 pandemic, due to the nature of their work and their financial insecurity. Moreover, they disproportionately work for small employers, so a "small business" exception for domestic workers will mean they are excluded wholesale. For FFCRA to mitigate this public health crisis in any meaningful way, domestic workers must remain included.
3. The Department's compliance materials should make clear that the FFCRA covers domestic workers.
Domestic workers fall within the FFCRA's definitions of eligible employee. The FFCRA uses the definition of "employee" from FLSA, which in turn includes most domestic workers. Id. § 5110(1)(a)(i) (using FLSA definition for emergency paid sick leave provisions); id. § 3102 (using FMLA definition for emergency family and medical leave expansion provisions); 29 C.F.R. § 825.102 (explaining that FMLA definition is the same as FLSA definition); 29 U.S.C. § 206(f) (FLSA definition); 29 C.F.R. § 552 et seq. (applying FLSA definition to domestic workers).
4. The Department's compliance materials should make clear that the FFCRA covers domestic workers who enter the U.S. under the J-1 Au Pair Program.
Au pairs are domestic workers who provide flexible, live-in childcare for up to 45 hours per week. 29 C.F.R. § 62.31. In the midst of this crisis, we have heard concerning stories from au pairs around the country about their working conditions:
- Au pairs are expected to do additional work, especially house cleaning in situations where the host family employer has asked their housecleaner not to work.
- An au pair is isolated in a home with a host family employer who has tested positive for COVID-19.
- An au pair asked to return to her home country, but was told by the sponsor agency that returning would reflect poorly and limit her chances of working for the sponsor agency in the future.
- An au pair wants to leave her host family employers, who have violated the program regulations by requiring her to work more than 45 hours per week. However, the au pair worries that she will not be rematched within the two-week period and will be forced to return to her home country, risking her health in transit.
- As some host family employers consider leaving the program, au pairs face the possibility of no shelter and an uncertain future during this crisis.
The Department is authorized to implement the FLSA with respect to the au pair program. Id. § 62.31(j); see also Exchange Visitor Program, 60 Fed. Reg. 8547, 8550 (Feb. 15, 1995) (explaining the Department's conclusion that the J-1 au pair program includes an employment relationship). Likewise, the Department has the authority to implement and enforce the FFCRA with respect to au pairs and their employers. In light of the troubling working conditions au pairs are experiencing, the Department must ensure its compliance efforts include au pairs.
5. The Department should conduct robust outreach and education to the communities that include domestic workers.
In order to ensure that domestic workers are adequately and fairly informed about their rights under the FFCRA, we recommend that the Department implement the following outreach and education strategies:
- Develop a Notice of Rights summarizing the rights afforded to workers and employer obligations under the FFCRA. The Notice of Rights shall be required to be distributed by employers of domestic workers to their employees. This should be available on the Department website in multiple languages including English, Spanish, Tagalog, Cantonese, Mandarin, Korean, Portuguese, Russian, Polish, Haitian Creole, and any other language the Department determines necessary.
- Develop a Fact Sheet and other basic materials regarding the FFCRA for domestic workers and employers to access on the Department website. The Fact Sheet must also be available in multiple languages.
- Develop a Fact Sheet tailored for immigrant workers—including DACA recipients, T and U Visa recipients, and J-1 au pairs, 29 C.F.R. § 62.31, among others—explaining their rights under the FFCRA. The Fact Sheet should expressly distinguish the rights and benefits extended to immigrant workers under FFCRA and their impact on the Inadmissibility on Public Charge Grounds Final Rule. Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292 (Aug. 14, 2019). Without such guidance, many immigrants may not exercise their FFCRA rights for fear of immigration consequences.
- The Department should provide guidelines to the Department of State requiring them to issue a J-1 Au Pair Notice of Rights to au pairs, sponsor agencies, and host family employers of au pairs.
- The Department should conduct webinars and other interactive trainings for low-wage worker advocates and community members about the FFCRA's rights and protections and the administrative adjudication process.
- The Department should place public service announcements in ethnic media outlets, including radio, television, and via targeted social media digital ads.
- The Department should establish a publicly-funded co-enforcement grant program with non-profits and/or worker centers that provide legal and social services to domestic workers and other low-wage workers to conduct industry-specific outreach and education.
- The Department should hire investigators and support staff that can respond to administrative complaints and questions in an expedient manner.
- The Department should establish a Worker Hotline for workers who have questions and experiencing workplace issues as a result of asserting their rights.
- The Department should triage and prioritize complaints of workers who are being threatened with termination and/or other forms of retaliation. In particular, the Department should ensure that immigrant workers facing immigration-related retaliation are provided immediate support. This also means the Department shall comply with the terms of the Memorandum of Understanding between the Department and the Department of Homeland Security when enforcing the FFCRA. U.S. Dep't of Labor & U.S. Dep't of Homeland Sec., Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites (Mar. 31, 2011).
Likewise, the Department's compliance materials for employers should specifically include language about the obligations of domestic employers, including household employers with as few as 1 employee. Public Law No. 116-127 §§ 5103(b) (model notice to employers), 5110(5)(D) (guidelines for calculating paid sick time).
Thank you for your consideration as the Department interprets and applies the FFCRA. If you have any additional questions, please feel free to contact me at email@example.com.
Rocio Alejandra Avila
State Policy Director/Staff Attorney
National Domestic Workers Alliance