April 10, 2020
The Honorable Eugene Scalia
Secretary of Labor
U.S. Department of Labor
200 Constitution Ave NW
Washington DC 20210
Dear Secretary Scalia:
The United Food and Commercial Workers International Union (UFCW) submits these comments on the Department of Labor (DOL) Temporary Rules for the Emergency Family Medical Leave Act and the Emergency Paid Sick Leave Act (85 FR 19326; RIN 1235-AA35), enacted as part of the Families First Coronavirus Response Act (FFCRA). The UFCW represents 1.3 million workers and the vast majority of our members are on the pandemic's front-line. They work at grocery stores, pharmacies, food processing plants, hospitals, nursing homes, and other essential jobs, and they are risking their lives to keep our communities safe, healthy, and fed. The Paid Leave Rules fail to ensure that all workers have equal access to emergency paid leave. The Rules broaden FFCRA's statutory exemptions, rather than narrow them, and place new burdens on workers who need leave – requirements that overstep the statute. To stop the pandemic spread, the DOL should fix these concerns and narrow the FFCRA's exemptions to expand equal access to paid leave.
Like all workers, our members need paid leave now more than ever to ensure that they can seek medical help, recover, care for family, and isolate themselves from the worksite to ensure the safety of their coworkers and consumers. An employer forcing even just one sick employee to report to work endangers co-workers, their families, and the community. Stopping the disease's spread and protecting our country's health and safety requires that all workers have equal access to paid sick and family leave.
We were dismayed that the FFCRA denied the right to guaranteed leave to more than 75% of the private sector workforce, or 93 million workers according to the Bureau of Labor Statistics. The FFCRA excludes all workers at businesses with 500 or more workers — leaving out 59 million workers or 48% of the private workforce. It also allows businesses with less than 50 workers to potentially exempt their workforce, which affects 34 million workers or 27% of the private workforce. FFCRA presumes that nearly 100 million workers are somehow immune to the disease, excused from quarantine orders, or unaffected by shuttered schools and childcare providers.
Even for those workers who happen to work for an employer with 50 to 500 workers, the FFCRA fails to guarantee them paid leave if they are a health care provider or emergency responder. The Rules further widen the FFCRA's gaping holes, by interpreting the definition of healthcare provider and emergency responder more broadly than the statute requires.
For employers who must provide paid leave, the Rules reduce coverage by imposing new requirements on employees exercising their right to paid leave. To protect workers, their families and co-workers, the DOL should fix the Rules by, amongst other things, narrowing the exemptions and removing its burden shifting onto employees in need.
Overreaching Definitions for Health Care Provider and Emergency Responder
The FFCRA allowed the DOL "to exclude certain health care providers and emergency responders from the definition of eligible employee" (emphasis added) and stated that an employer may "elect to exclude" an employee who is a health care provider or emergency responder from other provisions. See Sec. 110(a)(3)(A); 3105; 5102(a)(6). Denying paid sick and family leave to essential workers, let alone any worker, is counterproductive. The DOL should narrowly define health care provider and emergency responder to guarantee that paid leave is available to essential workers. The DOL's definitions go beyond "certain" or "specific" employees and broadly exempt whole industries regardless of their connection to the pandemic response. Moreover, the Rules wholesale exempt all such employers' workers, regardless of their job, and their role in the fight against COVID-19.
The DOL's Rules define a health care provider as including at least "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." (emphasis added). This includes contractors that provide any service to these entities. See 826.25(c)(1)(i).
Based on the Rules, a school offering a graduate program in midwifery could deny paid leave not only to the midwifery department but also the rest of the school's employees, such as the athletics department. In fact, if the school contracts with a janitorial company, the janitorial company could deny paid leave to those workers too.
The Rules also broadly define emergency responder. The Rules define emergency responder, in part, as "anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID–19." Sec. 826.25(c)(2)(i) (emphasis added).
These overbroad definitions will result in widespread exemptions because employers are effectively policing themselves – the Rules simply ask employers to be "judicious" when applying these wholesale exemptions.
The DOL should not exempt more workers that the State which knows who's necessary for COVID-19 response in their jurisdiction. The DOL's definition denies paid leave to millions of workers who have little to no direct involvement in the on-the-ground COVID-19 response.
Unnecessary No-work Provision
The FFCRA mandates employers to provide paid leave requirements to an employee who is "unable to work" due to one of the qualifying reasons under the statute. The statute does not state that the worker only gets paid if the employer provides them work for those days that the employee seeks paid leave. The DOL adds this new exception by stating that the employee cannot take paid leave due to a quarantine order or take family leave "where the Employer does not have work for the Employee[.]" Secs. 826.20(a)(3), (a)(6), (a)(9). (b)(1). This improper DOL requirement allows employers to evade the paid leave requirements by simply assigning them no work or claiming that the employee has no work for their requested leave days. In the face of the pandemic, businesses obviously will have less work to assign to employees, and Congress intended for such workers to still qualify for paid leave to address pressing medical and family needs.
FFRCA prohibits an employer from "discharg[ing], disciplin[ing], or in any other manner discriminat[ing] against" an employee requesting paid leave—such as by reducing work hours or furloughing – but DOL's new rule incentives employers to do precisely this. For example, an employer could respond to an employee who requests 12 weeks of family leave by stating that the employer will allow leave for weeks 1 and 2 because the employee was scheduled then, but the employer will not pay weeks 3 to 12 because the employer was not scheduled for them and further claim that the employer "has no work for the Employee."
The DOL should abide by the statute and remove this inappropriate loophole.
Improper Prerequisite Documentation Requirements
The statute makes clear that the only prerequisite for an employee to exercise the right to paid leave is for the employee to have a covered condition. The statute makes no mention of documentation requirements. However, the Rules improperly shift the burden onto the employee by imposing employee documentation requirements, prior to the employer granting paid leave. See Sec. 826.100 (stating "An Employee is required to provide the Employer documentation containing the following information prior to taking" paid leave). In other words, the Rules permit an employer to lawfully deny paid leave to a worker suffering from COVID-19, effectively forcing the worker to return to work, simply because the employer decides that the sick worker did not meet the documentation requirements. Many employees may not know about these new documentation requirements because they are neither in the stature nor in the DOL's FFCRA worksite posters. The DOL should remove this inappropriate and unnecessary roadblock.
Even worse, the Rules further contradict the statutory language by authorizing an employer to deny an employee paid leave if the employer determines that the employee has not provided sufficient materials to support the employer getting an applicable tax credit. The Rules state:
The Employer may also request an Employee to provide such additional material as needed for the Employer to support a request for tax credits pursuant to the FFCRA. The Employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. 826.100(f).
These "additional materials" are not specified or defined, allowing employers broad scope to deny leave. The DOL should not predicate the statutory rights of workers to paid leave on an employer tax credit. An employer should not be able to deny a worker sick with COVID-19 their rights to statutory paid leave.
Additionally, the Rules place a new roadblock for workers seeking to exercise their right for paid family leave by requiring employees to certify that "no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes Paid Sick Leave or Expanded Family and Medical Leave." Sec. 826.100(e)(3). The FFCRA gives an employee the right to paid family leave "if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable" due to COVID-19 or a public health emergency. See Sec. 5102(a)(5); 110(a)(2)(A). The Rules improperly shift the burden to employees to make this unnecessary representation. The Rules now empower employers to scrutinize employees' childcare situation at home, using the vague and undefined criterion of "suitability." Workers face enough difficulty in exercising their right to paid family leave and now many workers may choose not to exercise this right for fear of their employer questioning whether they have "no other suitable person" to care for their child. The DOL should remove this and all other prerequisite documentation requirements.
All workers need to have secure and immediate access to paid leave to keep themselves, their families, and co-workers safe and end this pandemic. As you know, COVID-19 is a matter of life and death. See for example Grocery Workers Are Beginning to Die of the Coronavirus, Washington Post, April 6, 2020. The DOL must promptly fix these Temporary Rules to ensure that the most workers have equal and unfettered access to paid leave now, as Congress intended.
/s/ Anthony M. Perrone