Bloomberg Law
April 14, 2020, 7:34 PMUpdated: April 14, 2020, 11:06 PM

New York Sues Trump Administration Over Covid-19 Paid Leave (2)

Ben Penn
Ben Penn

The Trump administration is unlawfully excluding many workers from new coronavirus-related paid leave benefits, New York’s top attorney said in a lawsuit.

A recent Labor Department regulation denies emergency paid sick and family leave to health-care employees and other workers Congress intended to cover, New York Attorney General Letitia James alleged in a complaint filed Tuesday. The attorney general asked a federal judge in Manhattan to overturn parts of the regulation that would either exclude coverage or make it more difficult for workers to prove to their employers that they’re owed paid leave as a result of Covid-19, the disease caused by the novel coronavirus.

The lawsuit comes 12 days after the Labor Department’s Wage and Hour Division issued a final rule implementing the Families First Coronavirus Response Act (Public Law 116-127). The law, and the regulation, requires employers with fewer than 500 workers to provide two weeks of paid sick leave to employees unable to work due to the virus. Those companies also must offer up to 10 weeks of partially paid leave under expanded Family and Medical Leave Act coverage to care for a child whose school or day care is closed because of the pandemic. The leave expires Dec. 31.

The department exceeded its authority by enacting an “extraordinarily broad” exemption to the paid leave requirements that carves out virtually all health-care employees, according to the lawsuit. The state is also challenging a separate section of the rule that allows employers to deny leave to workers if they don’t have work available for employees.

The DOL further contravened the virus relief law by banning workers from taking their paid family leave or sick leave intermittently, unless approved by their employers, James argued. The regulation is also inconsistent with the virus law because the rule requires workers to provide extensive documentation to their employers when seeking paid leave, she said.

“By limiting the availability of paid sick leave, the Rule likely will cause more people to become infected with coronavirus, and thus cause New York to experience more uncompensated care costs,” James said in the lawsuit.

‘Unnecessary Distraction’

The Labor Department, in a statement from WHD Administrator Cheryl Stanton, called the lawsuit “an unnecessary distraction that the Department will address in court while simultaneously ensuring paid leave for workers.”

The rule became effective the day it was released, April 2. The agency won’t be enforcing the rule in full until April 18.

“In this time of crisis, the President and Congress jointly acted swiftly to provide workers of small- and medium-sized businesses with paid leave,” Stanton said. “The Department of Labor acted just as swiftly to implement the letter and spirit of the law through rulemaking, compliance assistance, and outreach.”

“Congress included commonsense provisions regarding those who are responding to the crisis and small businesses with very few employees that would otherwise close because of some of the law’s mandates,” Stanton continued. “Millions of Americans are now eligible for this leave and the Department already has begun processing hundreds of cases to protect workers.”

The case is New York vs. United States Department of Labor, S.D.N.Y., 1:20-cv-03020, 4/14/20.

Cause of action: Violation of the Administrative Procedure Act

Relief: Order vacating challenged portions of the rule; costs and expenses, including attorneys’ fees

Response: DOL calls lawsuit “unnecessary distraction” and says the rule implements “the letter and spirit of the law”

Attorneys: Letitia James, Matthew Colangelo represent New York

(Updated with additional reporting and DOL statement)

To contact the reporter on this story: Ben Penn in Washington at

To contact the editors responsible for this story: Chris Opfer at; Karl Hardy at