More than 75% of American workers are at companies that qualify for exemptions from providing paid leave, effectively gutting the law’s effectiveness.
The Trump administration this week drastically reduced the number of American workers who are eligible to receive paid leave from their employers under a recently passed coronavirus relief law.
In a guidance issued on Wednesday, the Department of Labor gave companies with fewer than 50 workers the option to decline offering their employees the 12 weeks of paid leave required by the law for those whose children are home from school or child care because of the coronavirus pandemic.
The legislation, passed in March, provides two weeks of paid sick leave and 12 weeks of paid family leave—measures championed by Democrats and largely opposed by Republicans—and reimburses employers for the cost via tax credits.
The law was intended to incentivize employers to keep workers on payroll while also ensuring employees did not have to choose between their paychecks and betraying the public health measures enacted to fight the coronavirus. But the Labor Department’s new guidelines effectively gut the law’s effectiveness: More than 75% of American workers are at companies that qualify for exemptions from providing paid leave.
As written, the law exempts employers from having to provide paid family leave only if doing so prevents their business from functioning, but lawmakers left it to the Department of Labor to specify what that means. The department on Wednesday published its guidelines, which give small businesses a lot of wiggle room to opt out of providing paid leave.
Companies with fewer than 50 employees can choose not to provide paid leave for child care if doing so would “cause the small employer to cease operating,” if the absence of workers requesting such leave would “pose a financial substantial risk to the financial health or operational capacity” of the small business, or if the company cannot find other workers “able, willing, and qualified” to fill in for the employee seeking leave. Small businesses, however, cannot be exempted from providing sick leave for an employee’s own illness.
The guideline also added measures that were not in the original law. Under the new rules, employers can now force workers to provide certification of the need to take leave and can also decline to offer leave if they wouldn’t have had enough work for the employee to do. Healthcare providers, first responders, and certain federal government employees can also be denied paid leave under the guidance.
Democrats immediately blasted the guidelines and called for them to be revised.
“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. This simply can’t stand,” said Sen. Patty Murray of Washington.”
Rep. Rosa DeLauro of Connecticut also criticized the Trump administration for its efforts to restrict paid leave. “In the middle of the COVID-19 pandemic, the Trump administration is robbing workers of the paid sick days and paid leave Congress passed into law for them. That is unconscionable,” DeLauro said in a statement.
Murray and DeLauro also wrote a letter to Labor Secretary Eugene Scalia on Wednesday, calling on him to rescind some of the guidelines. “Given that congressional intent was to respond to the unprecedented nature of this pandemic, DOL has the responsibility to provide the maximum flexibility for workers during this crisis—not restricting their leave to when employers’ grant their consent,” the lawmakers wrote.
Scalia released his own statement on Wednesday, in which he showed no signs of backing down. The law “provides unprecedented paid leave benefits to American workers affected by the virus, while ensuring that businesses are reimbursed,” he said.
The controversial guidelines are likely to ratchet up tensions between Democrats and Republicans as they implement a $2.2 coronavirus economic relief bill passed last week. It could also hamper efforts to negotiate any future relief bills, which appear likely, as nearly 10 million Americans have already filed for unemployment in the past two weeks.
Democrats have promised to push for another bill to expand paid leave to all workers, but Republicans remain opposed to such efforts and only voted for the initial law after Senate Majority Leader Mitch McConnell told Republican senators to “to gag and vote for it anyway.”
While that battle is yet to come, DeLauro underscored the importance of applying the existing paid leave law to as many workers as possible.
“People across the country are struggling to make ends meet, and essential workers who are still able to work need to know that if they or a loved one falls ill that they can take time off. Keeping workers from getting other workers sick is good for employees, employers, and our broader public health,” she said. “Secretary Scalia needs to immediately rescind this guidance and put workers’ needs first.”