EMERGENCY RULEMAKING'S DEMOCRACY DEFICIT: LESSONS FROM THE UNITED STATES'S PAID SICK LEAVE EXPERIMENT.

• Author: Candela, Kacie

In this short life that only lasts an hour merely How much--how little - is within our power Emily Dickinson (1) Introduction 67 I. Case Study: Emergency Rulemaking and the Families First Coronavirus Response Act 70 A. Administrative Law Background 72 i. Notice and Comment Rulemaking 72 ii. The APA's Good Cause Exception 74 iii. Statutory Authorization to Bypass Notice and Comment Rulemaking 76 B. The FFCRA Statute: Creation and Design 77 i. Emergency Paid Sick Leave Was the Product of Bipartisan Compromise 77 ii. The Families First Coronavirus Response Act 80 iii. The Health Care Providers and First Responders Exception 83 iv. Congress Statutorily Authorized Rule Promulgation Without Notice and Comment 84 C. The FFCRA Regulation: Implementation, Legal Challenge, and Revision 84 i. The DOL's Initial Implementation of the FFCRA and Early Critiques 85 ii. The N.Y. Attorney General's Lawsuit and the S.D.N.Y. Decision 87 iii. The DOL's September 2020 Rule Revision in Response to the S.D.N.Y. Decision 88 II. The Good Cause Exception: The Debate, Alternatives, and Reform Proposals 89 A. The Cases For and Against Using the Good Cause Exception 89 i. The Good Cause Exception Promotes Agency Flexibility and Enabled the DOL to Implement the FFCRA Quickly 89 ii. The Good Cause Exception Undermines Democratic Participation and Agency Accountability and Deprived the DOL of Valuable Information 91 B. Good Cause Exception and Reform Proposals and Alternatives 94 i. Proposals to Reform the Federal APA's Good Cause Exception 95 ii. OSHA Emergency Temporary Standards 96 iii. State Emergency Rule Procedures: The 2010 Model State APA, New York, and Virginia 98 III. A Procedural Framework for Emergency Rulemaking When the Good Cause Exception is Statutorily Authorized 101 Conclusion 106 Appendix A 107 INTRODUCTION

Luis Beltran was a maintenance building technician at a nursing home in New Jersey. (2) On March 24, 2020, he performed work in the room of a resident who soon after tested positive for COVID-19. (3) Luis began to feel ill, and the next week, his mother, who cared for his children while he worked, tested positive for COVID-19. (4) Luis was instructed by his local health department to quarantine for two weeks, but his employer repeatedly insisted he return to work earlier. (5) When he did not, he was fired. (6) Luis sued, asserting his statutory right to two weeks of emergency paid sick leave under the novel Families First Coronavirus Response Act (FFCRA). (7) His employer argued that it was entitled to exempt Luis from this leave because "health care providers" could be excluded under the statute/ At the time of his termination, the U.S. Department of Labor (DOL) erroneously defined "health care provider" to include people like Luis, who provided no health care but happened to work for a nursing home. (9)

Luis was not alone in being excluded from emergency paid sick leave due to the DOL's overly-broad emergency rule, which was promulgated, with Congress's blessing, without 'notice and comment' rulemaking procedures. (10) The temporary FFCRA, passed at the outset of the COVID-19 pandemic, provided some U.S. workers with two weeks of emergency paid sick leave to quarantine due to COVID-19 exposure or infection and expanded the Family Medical Leave Act to allow parents to take unpaid leave due to COVID-19-related school closures. (11) The federal government subsidized this leave with tax credits. (12) Employers covered by the law could elect to use the "health care provider" and first responder exception to exclude their employees from this emergency paid sick leave. (13) The DOL estimated that 9 million health care workers could be excluded at their employer's discretion but later admitted that the real figure might exceed that amount. (14) Another conservative estimate found that 5% of the active workforce, or approximately 8 million health care workers and emergency responders, were affected. (15) Seventy-five percent of health care workers and emergency responders were women, and 39% were people of color, including Hispanic individuals and those in non-white racial categories. (16)

Recognizing that the COVID-19 pandemic necessitated making sick leave accessible as soon as possible, Congress statutorily authorized the DOL to bypass notice and comment rulemaking and promulgate a binding regulation using the good cause exception. (17) However, for the first six months of the COVID-19 pandemic, the DOL exceeded its authority under the statute to further limit access to leave: it promulgated a final rule, inconsistent with the language of the FFCRA, allowing employers of any health care workers to exclude all their employees from emergency paid sick leave--barring many more workers, like Luis, who were not health care providers and whom Congress did not intend to exclude. (18)

In March of 2021, a federal court held that the DOL's erroneous definition of "health care provider" should not apply to cases like Luis's. Instead, the court found that the statute's definition of "health care provider" should be applied and denied the employer's motion to dismiss Luis's claim. (19) A few federal courts have begun to correct the DOL's error and retroactively restore the right to emergency paid sick leave to those who were wrongfully denied it during the first six months of the COVID-19 pandemic. (20) This correction--so far pursued by only a handful of plaintiffs--has only been possible thanks to an activist state Attorney General, receptive federal courts, and the DOL's eventual willingness to back down. (21) It is impossible to know how many potential plaintiffs have lost wages and employment but did not and will not have their pay or employment restored because they and their employers relied on the erroneous rule.

In part because the DOL abused its ability to promulgate a rule using the good cause exception to disregard Congress's clear directive, the FFCRA was underinclusive and insufficiently responsive to an emergency in which millions of workers in the United States suddenly needed paid sick leave and family leave. If the DOL had created a rule that was consistent with the FFCRA, more workers would have received paid sick leave, and fewer people may have died. (22) The purpose of the good cause exception, which allows agencies to bypass a lengthy notice and comment procedure, is to provide agencies the flexibility needed to respond to emergencies quickly. (23) The story of the United States's emergency paid sick leave experiment demonstrates the serious problems that can arise when Congress statutorily authorizes an agency to bypass notice and comment. While the agency may respond more quickly to emergencies and insulate itself from legal challenges to its decision to avoid notice and comment--arguably good things in an emergency --the agency may also exceed its authority and promulgate a rule inconsistent with congressional intent. (24) When this happens, as it did when the DOL implemented the FFCRA, Congress itself has no immediate recourse, and interested parties are unable to formally share information and evidence with the agency. Assuming a party has the requisite legal standing and resources to bring a claim in federal court, the slow and unpredictable nature of the judiciary makes it an unsuitable primary forum for ensuring agency accountability in an emergency. (25) Thus, the loss of the main vehicle for public participation in agency rulemaking--notice and comment --deepens the democratic deficit of agencies whose immense power is delegated by Congress, not derived directly from the people. (26)

Part I of this Note provides a general overview of notice and comment rulemaking, the good cause exception under the Administrative Procedure Act (APA), and statutory authorization to bypass notice and comment. It also explains how the FFCRA was passed by Congress and initially implemented by the DOL, and details how the DOL revised its implementation in response to a lawsuit by the New York Attorney General and an unfavorable federal district court ruling. Part II presents arguments for and against reforming the good cause exception, examines empirical evidence of the FFCRA's effectiveness and shortcomings, and offers alternative emergency rulemaking procedures in existence at the federal and state levels and alternatives proposed by scholars. Part III of this Note proposes a framework of procedural safeguards Congress should stipulate in future emergency legislation where it statutorily authorizes the use of the good cause exception, including a mandatory 30-day post-promulgation comment period and expiration after 90 to 120 days unless the agency promulgates a permanent rule.

1. CASE STUDY: EMERGENCY RULEMAKING AND THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT

   The good cause exception is a long-established, narrowly available mechanism for agencies to bypass the notice and comment procedures normally required to create regulations. (27) The decision to invoke the good cause exception under the APA typically lies with the agency but is subject to judicial review. (28) However, following national crises such as the September 11 terrorist attacks, environmental disasters, and the COVID-19 pandemic, Congress has passed emergency legislation authorizing rulemaking without notice and comment, so that agencies may implement the emergency law quickly to provide relief. (29) The good cause exception and statutory authorization are two avenues for bypassing notice and comment, but agencies cite different statutory authority to get there--the APA, an emergency statute, or sometimes both. (30) Scholars, as well as Congress itself in authorizing statutes, often use the "good cause exception" to refer to both the APA and statutory authorization to bypass notice and comment. (11)

   A recent example of statutory authorization is the FFCRA, a bipartisan act passed in March 2020 at the outset of the United States's COVID-19...