DOL Takes Paid Leave Away from Low Wage Healthcare Workers

Health Care
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New Orleans     This is complicated, so hang with me, but here is what you need to know.

  • Nursing home workers and other frontline healthcare providers like home health aides, and community home workers for the differently able account for perhaps the largest portion of the death count, as we pass 200,000 fatalities nationally from Covid-19.
  • Many of these workers are among the lowest paid service workers in the country.
  • A vast proportion of these workers are women and members of minority and ethnic groups.
  • Most of these workers do not have health insurance provided for them as employees and certainly not for their families.

Are you with me so far?  These are workers who need all the support we can give them during this pandemic.  Local 100 represents a bunch of these workers in Louisiana and other states.

Congress passed the Families First Coronavirus Response Act (FFCRA) earlier this year.  Among its many provisions there was an Emergency Paid Sick Leave Act (EPSLA) that provided two weeks of paid leave, reimbursed by the government to the employer, for workers forced to take off because of the virus, either to quarantine or for other reasons.   Given the paucity of benefits along these lines, this was literally a lifesaver for many lower waged healthcare workers in these facilities who usually had such skinny sick leave provisions that they would have been forced to work sick or hide symptoms, possible endangering themselves and the patients under their care.

A New York-based federal judge has struck down some of the Department of Labor regulations that determined eligibility and utilization of the leave.  Recently, the DOL issued new regulations for implementing Families First until the end of the year.  Some of what employers sought, the DOL fixed for them as a matter of simple clarification:  no paid leave, if no paid work; prior notice to employer required to take leave; and verification of sickness to employer.   More disturbingly, the new regulations expanded significantly the definition of “health providers” that would not be eligible for the paid leave.  Where before it was doctors, nurse practitioners, and emergency responders among others without whom there would have be no functioning healthcare system anywhere, now the DOL swept up everyone else in direct and indirect patient care and specifically enumerated nurses, LPNs, nursing home aides, home health aides, and others, all the way to lab techs that might be processing the Covid tests.

How is this not a forced-work provision for all of these workers on the frontlines?  The public can applaud and thank them, but for the vast majority, they will have to work – and work sick – to protect their paychecks, risking their own lives, their patients and clients, and the community itself, because of financial necessity.

Why is this a gift to employers?  We have all read stories of nurses being paid double and triple their normal wages to maintain staff ratios at hospitals.  Our union was able to negotiate pandemic pay for a number of these workers as facilities had to finally step up in order to staffed up.  No matter the intention of the policy to protect the healthcare system, the effect of the policy will be forced work, not healthcare to benefit employers, and certainly not workers or patients.

The DOL’s regulations added that nothing in this new rule, effective until the end of the year, would prevent a worker from taking leave under the Family Medical Leave Act, but of course there is a huge difference.  Families First paid for up to two weeks of leave, and FMLA is leave without pay.

This may have seemed complicated in the beginning, but now I’ll bet it is pretty easy to understand.