On August 3rd, 2020, the federal court for the Southern District of New York (Court) struck down four parts of the regulations adopted by the Department of Labor (DOL) pursuant to the Families First Coronavirus Response Act (FFCRA). This ruling (State of New York v. U.S. Department of Labor, No. 1:20-cv-03020) comes four months after the regulations went into effect, and five months before the FFCRA is set to expire on December 31st, 2020.

Among other provisions, the FFCRA includes the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). On April 1st, 2020, the DOL finalized “temporary” regulations, which went into effect immediately and described the obligations of employers and the rights of employees under the EFMLEA and EPSLA mandates.

Summary of the Court Decision

Shortly after the DOL issued its FFCRA regulations, the State of New York filed a lawsuit in federal court challenging some of the provisions. The following are the four mandates that were vacated by the August 3rd decision:

  1. The definition of who qualifies for the healthcare provider exemption. Under both the EPSLA and the EFMLEA, an exemption to the paid sick leave and paid family leave requirements applies to an employer of “a health care provider or an emergency responder.” The DOL’s regulations contained a definition and examples of the term “health care provider” for purposes of determining who may be excluded from receiving FFCRA leave. According to the ruling, the DOL went too far in defining health care providers as “anyone employed at” a doctor’s office, hospital, medical school or a number of other facilities “where medical services are provided.” This definition appears far broader than the definition of “health care provider” under existing Family and Medical Leave Act regulations.
  2. The exclusion from benefits of employees whose employers do not have work for them. The EPSLA grants paid leave to employees unable to work or telework due to a need for leave because any of six COVID-19-related criteria. The EFMLEA similarly applies to employees “unable to work (or telework) due to a need for leave to care for . . . [a child] due to a public health emergency.”
      • New York took aim at the DOL’s statement that otherwise statutorily mandated paid leave under the FFCRA is not available when the employer does not have work for the employee. This “work-availability requirement” specifically applies to the use of leave under the EPSLA where (i) the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; or (ii) the employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to quarantine; or under either the EPSLA or EFMLEA where the employee is caring for a child if the school or place of care of the child has been closed, or the child care provider is unavailable, due to COVID-19 precautions.
      • The DOL argued that if an employee took leave under any of those reasons, they would not be available for work, regardless of the need for leave. The Court disagreed and found the differential treatment of the six EPSLA reasons “entirely unreasoned” and “manifestly contrary to the statute’s language, given that the six qualifying conditions share a single statutory umbrella provision…” As a result, the work-availability requirement was not a permissible interpretation of the statute.
  3. The requirement that employees secure consent for intermittent leave for certain qualifying reasons. The FFCRA permits “employees to take Paid Sick Leave or Expanded Family and Medical Leave intermittently (i.e., in separate periods of time, rather than one continuous period) only if the Employer and Employee agree,” and, even then, only for a subset of the qualifying conditions. Under the regulations, the exercise of intermittent leave is limited to “circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees.” The regulations also provide that intermittent leave may apply in other circumstances that “do not implicate the same public-health considerations” – but only with employer approval. This limitation was rejected by the Court as “entirely unreasoned” and therefore impermissible.
  4. The requirement for documentation before taking leave. The DOL regulations contain several provisions regarding appropriate documentation when an employee wants to use leave under the EPSLA or EFMLEA. Specifically, the regulations note that the employee must provide documentation containing the following information prior to taking leave: (1) employee’s name; (2) the date(s) requested for leave; (3) qualifying reason for the leave; and (4) a statement that the employee is unable to work because of the qualifying reason for leave.

While the FFCRA does not specify any documentation requirement, it notes the following with respect to employee notice — “After the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.” The Court vacated the part of the regulation’s documentation provision stating that employees must provide the required documentation before taking leave, finding the requirement inconsistent with the timing set forth in FFCRA notice provisions.

Employer Takeaway

The DOL has 30 days to appeal the decision or request a stay. The ruling clearly applies in the Southern District of New York, however, its impact outside of the district is uncertain as of the date of this post. All employers  covered by the FFCRA, however, should become familiar with the decision and the possible effect it might have on their administration of paid leave requests under the FFCRA.