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Law360 (April 2, 2020, 8:00 PM EDT) -- Democratic lawmakers urged the U.S. Department of Labor on Thursday to rewrite guidance it issued last week to help workers and employers navigate leave provisions of the coronavirus relief package, saying the agency created new loopholes that limit who can get paid leave due to COVID-19.
Sen. Patty Murray, D-Wash., said the agency's March 24 guidance about the Families First Coronavirus Response Act created new limitations not included in the law, like certifications for workers seeking leave, a narrow definition of who's considered "unable to work" and restrictions on intermittent leave.
"Thanks to Republican opposition, the steps we've taken on paid leave are inadequate in light of the crisis, and now, the Trump administration is twisting the law to allow employers to shirk their responsibility and is significantly narrowing which workers are eligible for paid leave," Murray said in a statement on Thursday. "This guidance needs to be rewritten so workers get the leave they are guaranteed under the law."
The act, which went into effect Wednesday, makes businesses with fewer than 500 workers provide emergency short- and long-term leave. Under the law, part- and full-time workers can get two weeks of time off at full pay if they can't work for reasons related to the virus, including if they've been quarantined or have COVID-19 symptoms and are seeking a diagnosis.
Last week's guidance clarified who and what the law covers and to whom it doesn't apply, like independent contractors.
The guidance also laid out various mechanics of the law, including the reasons workers may take leave, that undermine the law itself, Murray — the ranking member of the Senate Health, Education, Labor and Pensions Committee — said in a letter sent to Labor Secretary Eugene Scalia on Wednesday.
First, the senator said, the guidance erroneously lets employers demand certification from an employee seeking paid sick or family leave and that employers can require additional documentation in support of an employee's request.
"This conclusion has no basis in the text," Murray wrote in the letter co-signed by Rep. Rosa DeLauro, D-Conn. "Employers must provide paid leave if an employee meets one of the qualifying needs for such leave — and the employer has no authority to require certification of the need for leave."
Further, by stating that an employer must have work for an employee to perform in order to qualify for paid leave, the DOL's guidance clearly undermines the law, the lawmakers wrote in the letter.
"This inaccurate conclusion would allow all employers to evade the requirements of the act at any point during this pandemic by informing employees that it does not have work for them to perform at the moment — thereby fully depriving them of a day, a week, or 12 weeks of paid leave," the lawmakers wrote.
The senators accused the agency of effectively rewriting the law by stating that workers can only take leave intermittently if permitted by their employer, a requirement nowhere to be found in the law. They also said the agency created confusion about who qualifies as a health care provider, which ultimately determines who qualifies for leave on the basis of a self-quarantine order.
While the law maintains that a health care provider is "a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the [Family Medical Leave Act]," the DOL's guidance states that a provider is "anyone employed at any doctor's office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction." The agency goes on to list a wide range of health care facilities.
"First, DOL lacks authority to deviate from the definition provided by Congress," Murray wrote. "Second, DOL has no basis for defining a term that Congress has defined narrowly elsewhere in labor law to be so unreasonably broad solely for the purposes of allowing exclusions from protections."
The lawmakers urged the agency to rewrite the guidance immediately.
The U.S. Department of Labor didn't respond to requests for comment on Thursday.
--Additional reporting by Braden Campbell and Vin Gurrieri. Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
