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Trump administration quietly guts COVID-19 paid leave provision that already excluded 75 percent of workers

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Donald Trump, Mike Pence and Steve Mnuchin

The Trump administration has quietly issued new guidance that will exempt many small businesses from having to provide some workers with paid leave during the coronavirus pandemic.

The Department of Labor issued a temporary rule Wednesday that effectively exempted businesses with fewer than 50 workers from being required to provide 12 weeks of paid leave for workers whose children are suddenly at home from school or child care under the coronavirus stimulus package signed by President Donald Trump.

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This article first appeared in Salon.

Democrats already agreed to exclude workers at large companies with more than 500 employees from being eligible for sick leave during negotiations with Republicans. As a result, more than 75% of American workers are employed by companies not required to provide them with sick leave during the pandemic.

The bill passed by Congress said businesses with fewer than 50 employees could be eligible for exemptions if they prevent the business from being able to function, The New York Times reported. The Trump administration’s guidance has effectively exempted these businesses entirely from having to provide paid leave to workers who have to take care of their families, though it still requires them to provide paid leave if employees themselves get sick.

These companies can refuse to provide paid leave if doing so would “cause the small business to cease operating,” if the worker’s absence would create a “substantial risk” or if there were not enough workers “able, willing and qualified” to fill in for them.

The Times noted that health care providers, first responders and some federal government employees can also be denied paid leave under the bill.

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Democrats called out the Labor Department for adding provisions not included in the original bill. The department’s guidance allows companies to require workers to provide certification that they needed to take leave and that there needed to be work for the employee in order to be eligible, thus exempting businesses that have been forced to shut down under stay-at-home guidelines.

Sen. Patty Murray, D-Wash., and Rep. Rosa DeLauro, D-Conn., sent a letter to Labor Secretary Eugene Scalia accusing his department of issuing guidelines that “violate congressional intent” and “contradict the plain language” of the bill.

“Given that congressional intent was to respond to the unprecedented nature of this pandemic,” the letter said, the department had “the responsibility to provide the maximum flexibility for workers during this crisis — not restricting their leave to when employers grant their consent.”

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Scalia said in a Wednesday statement that “the bill provides unprecedented paid leave benefits to American workers affected by the virus, while ensuring that businesses are reimbursed dollar-for-dollar.”

But Murray and DeLauro argued that some of the department’s guidance “has no basis in the text” of the law and that there was “nothing in the text” requiring many of the new provisions. The letter called on the department to “immediately revise” its guidance “in accord with the text and congressional intent” of the law.

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Economists also sounded the alarm over a provision that exempts health care workers.

“Exempting health care providers and emergency responders threatens our nation’s ability to fight back against the coronavirus and makes us all more vulnerable,” Heather Boushey, who heads the progressive think tank Washington Center for Equitable Growth, told The Times. “Our health care workers are the most susceptible to exposure and are in a position to pass it on to other patients. These are the workers who most need to be protected.”

The guidance was just one way in which the Trump administration has sought to undermine provisions in the bill pushed by Democrats. The president issued a signing statement last week undercutting the law’s provision creating a “special inspector general,” who would be charged with overseeing corporate loans made by the Treasury Department under the new law.

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“I do not understand, and my administration will not treat, this provision as permitting the [inspector general] to issue reports to the Congress without the presidential supervision required” by Article II of the Constitution, Trump said in the signing statement, arguing that the administration views that provision and those requiring reports to Congressional committees as optional. “These provisions are impermissible forms of congressional aggrandizement with respect to the execution of the laws.”

The move drew strong criticism from Rep. Alexandria Ocasio-Cortez, D-N.Y.

“And just like that, the Congressional oversight provisions for the 1/2 TRILLION dollar Wall St slush fund (which were *already* too weak) are tossed away the day the bill is signed,” she tweeted. “This is a frightening amount of public money to have given a corrupt admin [with zero] accountability.”

Speaker of the House Nancy Pelosi, D-Calif., said the signing statement was “no surprise.”

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“But Congress will exercise its oversight,” Pelosi told MSNBC. “And we will have our panel appointed by the House to, in real-time, to make sure we know where those funds are going to be expended.”

Pelosi announced a new select committee Thursday that would oversee the administration’s coronavirus response.

“The panel will root out waste, fraud, and abuse and will protect against price gouging, profiteering, and political favoritism,” she said. “Where there’s money there’s also frequently mischief. We want to make sure there are not exploiters out there.”


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