Paid-Leave Promise Turns “Mirage’ for Most Workers in Pandemic

Bloomberg Law - Ben Penn
May 27, 2020

Attempts to enforce a new paid-leave law for workers affected by the coronavirus are colliding with the reality that the majority of the workforce isn’t eligible for the benefits.

The wide array of exemptions written into the law and subsequent regulations the Department of Labor issued have left few options for thousands of workers who have called the department, lawyers, or advocacy groups for help, according to interviews with a dozen government employees, worker advocates, and private attorneys.

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The Families First Coronavirus Response Act that Congress swiftly passed in March included a temporary 12-week paid-leave provision. It gives workers up to two weeks of paid sick leave at their regular earnings if they’ve been diagnosed with the virus, are experiencing symptoms, or are subject to a government quarantine order. Up to 10 additional weeks of family leave, paid at two-thirds of the typical salary, are available to employees who need to care for a child whose school or place of care is closed due to the virus.

But there are exemptions for companies with at least 500 workers, virtually the entire health-care sector, and certain businesses with fewer than 50 workers. The Labor Department’s  implementing regulation  further narrowed the provision’s reach by allowing employers to deny leave to furloughed employees or when there’s no work available.

The agency’s Wage and Hour Division has concluded more than 700 cases under the FFCRA as of May 26 mostly involving one worker at a time with hundreds more underway, a DOL official said in an interview. In some cases, the agency recovered back pay for workers who were denied leave or the employer agreed to begin providing leave; in others, the division found the employers weren’t in violation, said the official.

These cases account for a sliver of the approximately 200,000 phone calls the WHD has received since the law was enacted, he added. Many calls are referred to other agencies because the worker seeking to file a complaint is deemed ineligible. Frequently, the workers had been laid off before the rule took effect.

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No Accountability

The DOL, in its  paid-leave rule, estimated that up to 61 million Americans 47% of the workforce qualified for benefits. But the agency said that’s just based on the number of workers at firms with fewer than 500 employees. It acknowledged the number is lower with the exclusions for small businesses and health care.

The law addressed a meaningful need, and we know that because of the number of people who have called. But also it was imperfect in both the protections that it afforded and its enforcement of those protections, ” said Cara Greene, an Outten & Golden partner in New York, whose plaintiff firm receives dozens of calls per week from employees thinking they’ve been wrongly denied leave benefits.

There’s no mechanism to immediately hold employers accountable and to immediately avail employees of the protections of the law if the employer is refusing to provide those protections, ” she added.

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