On August 3, 2020, the United States District Court, Southern District of New York, published an Opinion and Order (“Order”)[1] regarding the Department of Labor’s (DOL) “Final Rule”[2] relating to the Families First Coronavirus Response Act (FFCRA).

The FFCRA requires employers to offer sick leave and emergency family leave to employees who are unable to work due circumstances related to COVID-19. The DOL promulgated the Final Rule on April 1, 2020, as guidance for implementing the FFCRA’s provisions.

The State of New York challenged four provisions of the Final Rule, which relate to two broader mandates of the FFCRA: the Emergency Family and Medical Leave Expansion Act (EFMLA), which entitles employees to up to ten weeks of paid leave if they are unable to work because they must care for a child due to COVID-19; and the and the Emergency Paid Sick Leave Act (EPSLA). The EPSLA requires employers to provide up to 80 hours of paid sick leave to employees with any of the following six qualifying reasons:

1. 1. they are subject to a Federal, State, or local quarantine of isolation order;
2. 2. they have been advised to self-quarantine by a health care provider;
3. 3. they are experiencing symptoms of COVID-19 and are seeking a medical diagnosis;
4. 4. they are caring for an individual subject to a quarantine or isolation order;
5. 5. they are caring for a child whose school or childcare is closed or unavailable; or
6. 6. they are experiencing other substantially similar concerns identified by the Secretary of Health and Human Services.[3]

The Court’s Order is discussed in greater detail below:

The Court Vacated the Final Rule’s Work-Availability Requirement

The Final Rule excludes employees from the benefits of the EFMLA and the EPSLA if their employers “do[] not have work” for them. (See Final Rule at 19349-50 (§§ 826.20(a)(2), (6), (9), (b)(1)). The Court labeled this as the “work-availability requirement.” Importantly, the exclusion only applies to qualifying reasons (1) (regarding quarantine/isolation orders), (4) (regarding care for someone subject to a quarantine/isolation order) and (5) (regarding care of children because of a closed school or childcare facility) of the EPSLA. New York argued the Final Rule’s exclusion narrows the FFCRA’s scope, because it limits benefits to employees otherwise eligible for those benefits.

The Court applied the Chevron test[4] to the Final Rule’s exclusion to determine whether its limits were reasonable. It held that, “as to the EPSLA, the Final Rule’s differential treatment of the six qualifying conditions is entirely unreasoned” and “the [DOL’s] barebones explanation for the work-availability requirement is patently deficient.”[5] Thus, the Court vacated the “work-availability” requirement from the Final Rule.  For employers subject to the FFCRA, this does mean that employees on furlough or partial furlough will be able to use FFCRA time off, whereas before the FAQs and Final Rule indicated that this was not the case. 

The Court vacated the Final Rule’s “Health Care Provider” Definition

Next, New York argued the DOL exceeded its authority to define the term “medical care provider” in the Final Rule. This definition is important because employers may elect to exclude “health care providers” from leave benefits provided by the FFCRA. The Final Rule’s definition of “health care provider” is much broader than that of the FFCRA, whose definition is tethered to the type of employee, i.e. a doctor of medicine.[6] On the other hand, the Final Rule’s definition is based on the type of employer, i.e. doctor’s office, hospital, post-secondary educational institution offering health care instruction, etc. The Court agreed with New York and vacated the DOL’s promulgated definition. It explained that the DOL’s definition of a “health care provider” could lead to outlandish arguments that an English professor at a university with a medical school was a health care provider who should be exempt from the FFCRA’s benefits.

The Court Kept the Final Rule’s Intermittent Leave Provision

The Final Rule includes a provision that an employee taking leave for an intermittent-leave restricted reason must take his or her leave consecutively until his or her need for leave abates, but the employee retains any remaining unpaid leave, and may resume leave if another qualifying reason arises.

New York argued that the Final Rule’s provision was overly broad. However, the Court disagreed. It found the Final Rule’s provision consistent with the FFCRA’s stated justification that the restriction is meant to decrease the risk of spreading COVID-19. Notwithstanding, the Court held that the Final Rule’s employer-consent provision could not stand.

The Court Vacates the Final Rule’s “Prior Notice” Documentation Requirements

The Final Rule requires employees to provide to their employer, prior to a FFCRA leave, documentation relating to the reason for leave, the duration of leave, qualifying reason for the leave, and an oral or written statement regarding the employee’s inability to work. New York argued these prior notice requirements were more onerous than required by the FFCRA. The Court agreed and found that “the documentation requirements, to the extent they are a precondition to leave, cannot stand.”[7]

Summary of Court’s Order and Next Steps

The Court provided a concise summary of its Order as follows:

The following portions, and only the following portions, of the Final Rule are therefore vacated: the work-availability requirement; the definition of “health care provider”; the requirement that an employee secure employer consent for intermittent leave; and the temporal aspect of the documentation requirement, that is, the requirement that the documentation be provided before taking leave. The remainder of the Final Rule, including the outright ban on intermittent leave for certain qualifying reasons and the substance of the documentation requirement, as distinguished from is temporal aspect, stand.[8]

General Applicability Is Not Clear

Notwithstanding the Court’s vacating several portions of the Final Rule. It did not make clear whether its Order is applicable nationwide or just to the State of New York.

It is likely that the DOL will promulgate an updated Final Rule and Frequently Asked Questions related to this Order.  Or, we may see an immediate appeal by the DOL.  In the meantime, clients should use caution before making any significant changes to their COVID-19-related leave policies, if applicable, and/or making FFCRA-related decisions based on the Final Rule and FAQs, which may now need to be modified.

Do you have questions about how this update may affect you?  For further information contact:

Emily J. Fox (efox@wilsonturnerkosmo.com)

Lois M. Kosch (lkosch@wilsonturnerkosmo.com) 

Michael Kalt (mkalt@wilsonturnerkosmo.com)

Michelle Pacis (mpacis@wilsonturnerkosmo.com)

Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant developments in the law as they occur. This should not be considered legal advice.