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Law360 (May 6, 2020, 9:56 PM EDT ) The state of New York urged a federal judge not to dismantle its suit accusing the U.S. Department of Labor of limiting who can take emergency paid leave during the coronavirus pandemic, saying the Empire State faces substantial financial risks unless the court intervenes.
The New York Attorney General's Office on Tuesday shot back at the DOL's bid to dismiss the state's suit claiming portions of a rule issued by the DOL on April 1 to flesh out various aspects of the Families First Coronavirus Response Act violate the statute.
While the DOL said New York failed to show that the rule at issue actually injured the state, New York argued the opposite. New York said the rule "leaves gaping, nonsensical and unlawful loopholes in the availability of necessary paid leave."
The rule will keep many New Yorkers from being able to access paid leave, which will in turn lead to more of them becoming infected with the virus, New York said. That will require the state to pay more in health care costs, New York said.
"Because New York operates hospitals and pays the cost of care for numerous patients, defendants' acknowledgment that decreasing the availability of paid leave will increase the strain on health care providers and hospitals because of the occurrence of more COVID-19 infections is a concession that New York is harmed," the state said.
Congress passed the FFCRA in March to help workers affected by COVID-19 and could cover more than 60 million American workers. The statute, which will remain in place until the end of the year, 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.
New York Attorney General Letitia James launched the suit on April 14. She said the DOL's rule implementing the FFCRA leaves too many workers on the outside looking in, denying them "vital financial support" and placing them at greater risk of being exposed to the virus. Her complaint noted that the law was passed to incentivize workers to stay home if they are sick and to lend an economic hand to workers who have no option but to stay home to look after their kids during the pandemic.
James also had asked the court to sever the parts of the rule that flout the FFCRA and vacate them.
She said 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.
And while the FFCRA gives the DOL some leeway to exclude certain people who work as "health care providers" from the law's coverage, James said the Labor Department adopted far too broad a definition of that term.
The suit also said the DOL overstepped the bounds set by the FFCRA when it determined that workers need their employer's permission to take FFCRA leave intermittently. Additionally, James has alleged that the DOL's rule requires employees to submit "extensive documentation" to support an FFCRA leave request that isn't called for in the statute.
The federal government moved to toss the suit not long after it was filed, arguing that the state hasn't shown how challenged parts of the rule will affect health costs. Additionally, it shot back at the state's bid to try to show "injury-in-fact through an alleged decrease in tax revenues," among other things.
Representatives for the federal government and the New York Attorney General's Office did not immediately respond to requests for comment on Wednesday.
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.
The DOL is represented by Geoffrey S. Berman, Jennifer Jude and Stephen Cha-Kim of the U.S. Attorney's Office for the Southern District of New York.
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 Vin Gurrieri. Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
