New York Federal Court Vacates Several Portions of DOL Regulations Regarding FFCRA Leave

On August 3, 2020, a New York federal court invalidated several key portions of Department of Labor’s (“DOL”) rules and guidance concerning the Families First Coronavirus Response Act (“FFCRA”). The court’s ruling significantly affects employers and expands the number of employees who are eligible for FFCRA leave.

As we previously reported, the FFCRA is a federal law that provides two forms of COVID-19 related paid time off to employees of businesses with fewer than 500 employees in the U.S. On the day the FFCRA took effect, the DOL issued a final administrative rule implementing and interpreting the FFCRA (the “Final Rule”). The Final Rule, which is effective through December 31, 2020, provides rules and guidance relevant to the administration of the FFCRA’s paid leave requirements.

On April 14, 2020, the state of New York filed suit in the U.S. District Court for the Southern District of New York (“SDNY”) against the DOL, claiming that several features of the DOL’s Final Rule exceeded the agency’s authority under the Administrative Procedure Act (“APA”).

The Court held that four limitations on the use of FFCRA leave which were promulgated in the DOL’s Final Rule exceeded the agency’s rulemaking authority. Specifically, the Court vacated the following: (1) the “work-availability” requirement; (2) the definition of “health care provider”; (3) the requirement that an employee secure employer consent for intermittent leave; and (4) the requirement that documentation be provided before taking leave.

“Work-Availability” Requirement
The DOL’s Final Rule provided that employees are not entitled to FFCRA-paid leave benefits if the employee’s inability to work was due to their employer having no work available. The Court vacated this “work-availability” requirement finding that the DOL did not provide sufficient justification for it. The Court held that the “work-availability” requirement is contrary to the FFCRA’s purpose because it “may considerably narrow the statute’s potential scope,” given the large number of businesses that have experienced temporary shutdowns and/or slowdowns. Under the Court’s interpretation of the FFCRA, employees may be eligible for FFCRA-paid leave even if there is no work for them to do.

The Court did not address whether its ruling would require employers to provide FFCRA-paid leave to employees who have been furloughed. Therefore, it is possible that employers may seek to use furloughs to avoid providing paid leave to employees who have no work available. However, it is possible that a future court could find that the ruling applies to employees who are furloughed due to lack of work.

Definition of “Health Care Provider”
The FFCRA enables employers to exclude, at their option, “health care providers” from paid leave benefits. The Final Rule’s broad definition of “health care providers” included essentially any employee of an employer in the health care field. As a result, employers could deny leave to a large number of employees who did not actually provide health care services.

The Court vacated the Final Rule’s broad definition and the term “health care provider” is now limited to how the FMLA defines it, which is as: “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.” 29 U.S.C. § 2611(6).

Intermittent Leave
The Final Rule restricts the use of intermittent leave unless the following two conditions are met: (1) the employee and employer agreed to the use of intermittent leave; and (2) if the employee continues to report to an employer’s worksite, then the use of intermittent leave is permitted solely to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, because of reasons related to COVID-19.

The Court found that the DOL’s Final Rule was proper in that it restricted the use of intermittent leave to circumstances where there is minimal risk that the employee will spread COVID-19 to other employees at the employer’s worksite. However, the Court vacated the requirement that employees obtain employer consent before taking intermittent leave.

Therefore, employees are no longer required to obtain employer consent before taking intermittent leave and an employer must allow intermittent leave unless the employee’s specific circumstances appear to create a higher risk of viral infection.

Documentation Requirements
The DOL’s Final Rule requires that employees submit documentation indicating, inter alia, their reason for leave, the duration of the requested leave, and, when applicable, the authority for the isolation or quarantine order qualifying them for leave, prior to taking FFCRA leave.

The Court vacated this requirement and held that the FFCRA only requires employees to provide notice prior to taking leave, and the requirement to provide documentation imposed “a different and more stringent precondition to leave that was inconsistent with the FFCRA’s notice provision.” As a result, employers cannot mandate that employees provide FFCRA documentation in advance of taking leave.

It is likely that the DOL will appeal this decision to the Second Circuit and seek an emergency stay pending review. We will continue to follow developments in this area and will update you accordingly. Should you have any questions regarding the FFCRA or any other employment matter, ALG is here to assist you.