By Vin Gurrieri

Law360 (April 14, 2020, 10:14 PM EDT ) A recent U.S. Department of Labor rule "unlawfully narrows" the number of people who are covered by the emergency paid leave law that Congress enacted to help workers get through the novel coronavirus pandemic, New York Attorney General Letitia James said in a lawsuit Tuesday.

James argued in her New York federal court complaint that portions of a rule issued by the DOL on April 1 that fleshed out various aspects of the Families First Coronavirus Response Act violate the statute, which Congress passed last month to help workers affected by COVID-19 and could cover more than 60 million American workers. 

The FFCRA mandates that employers with fewer than 500 employees provide workers with short-term paid sick time for various reasons tied to COVID-19 and long-term paid leave to workers who must care for kids whose schools or child care providers are closed. The law took effect on April 1, several weeks after it was signed by President Donald Trump, and will remain in place until the end of the year.

James argued in Tuesday's suit that the DOL's rule implementing the FFCRA leaves too many workers on the outside looking in, denying them "vital financial support" and places them at greater risk of being exposed to the disease. Her complaint noted that the law was passed to incentivize workers to stay home if they are sick by continuing to pay them and to lend an economic hand to workers who have no option but to stay home to look after their kids during 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," James said in a statement announcing the suit. "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. 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."

In conjunction with the complaint, James filed a motion for summary judgment that asks the court to sever the parts of the rule that flout the FFCRA and vacate them.

James' suit argues the DOL's regulation prevents workers from taking advantage of the entitlement if their employer determines that it doesn't have any work for the employee to perform.

Although the FFCRA gives the DOL some leeway to exclude certain people who work as "health care providers" from the law's coverage, James said that the Labor Department adopted far too broad of a definition of that term, potentially excluding millions of workers that Congress intended the law to cover.

Moreover, the New York attorney general alleged that the DOL overstepped the bounds set by the FFCRA when it determined that workers need their employer's permission to take FFCRA leave intermittently — which is to say taking leave for short periods of time.

Additionally, James alleged that the DOL's rule requires employees to submit to their employers "extensive documentation" to support an FFCRA leave request that isn't called for in the statute.

"The final rule conflicts with the plain language and purpose of the statute Congress enacted by, among other things, codifying broad, unauthorized exclusions from employee eligibility that risk swallowing Congress's intended protections; and creating from whole cloth new restrictions and burdens on employees that appear nowhere in the text Congress enacted," the complaint alleged. "The final rule thus undermines Congress's public health and economic security goals."

A representative for the DOL could not immediately be reached for comment.

Under the FFCRA, employers with 500 or fewer workers must provide employees with up to two weeks of sick leave at full pay up to a $511-per-day cap if the workers directly affected by COVID-19 and at partial pay up to $200 a day to care for affected family members.

The law lays out six "qualifying reasons" that let workers use the two-week paid sick leave benefit, including if they can't work because of a quarantine or isolation order or have COVID-19 symptoms and are seeking a diagnosis.

The law also amends the Family and Medical Leave Act to provide workers with up to 10 weeks off at partial pay up to $200 per day to care for children whose schools or child care centers have closed due to the virus, after two unpaid weeks. Employers covered by the law can seek reimbursement of any qualifying FFCRA leave through tax credits.

Under the FFCRA, businesses with fewer than 50 employees can be exempted from having to provide leave to workers whose kids' schools or child care providers are closed because of COVID-19, a carveout that depends on the extent to which workers' absences would disrupt companies' operations.

The Labor Department's regulation codified and expanded upon several tranches of guidance that the agency issued in the weeks after the law was enacted, including a Q&A document that the agency updated several times to address key questions about the law as they came up.

New York is represented by Letitia James, Matthew Colangelo, Eric R. Haren, Fiona J. Kaye and Daniela L. Nogueira of the Office of the New York State Attorney General.

Counsel information for the DOL wasn't available.

The case is State of New York v. U.S. Department of Labor, case number 1:20-cv-03020, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Braden Campbell. Editing by Michael Watanabe.

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