The Families First Coronavirus Response Act (“FFCRA”) went into effect on April 1, 2020 along with the Department of Labor’s (“DOL”) regulations, which described employer obligations and employee rights under the FFCRA’s paid sick time law and expanded family medical leave to include paid family medical leave benefits.
Just days ago, a Southern District of New York Court (“S.D.N.Y.” or “Court”) decision effectively expanded the access to paid leave by vacating sections of the regulations that allowed employers to deny leave if the employer did not have work available, that broadly define health-care exemptions, that required workers receive employer consent for taking intermittent leave, and that required documentation prior to taking any leave under the FFCRA. New York v. U.S. Dept. of Labor, Case No. 20-cv-3020 (S.D.N.Y. Aug. 3, 2020).
The lawsuit was brought by the State of New York against the DOL and responds to competing motions for summary judgment. Finding that the DOL regulations did not support Congress’s intent by excluding the health-care sector and other employees, the decision vacates the following portions of the FFCRA regulations, which are discussed in greater detail below:
- The work-availability requirement;
- The definition of “health care provider;”
- The requirement that an employee secure employer consent for intermittent leave; and
- The timing of the documentation requirement, which required that documentation be provided before taking leave.
1. The Work-Availability Requirement
The Court struck down the DOL regulation’s “work-availability requirement,” which excludes employees from receiving leave benefits if the employer “does not have work for them.” DOL Final Rule, 85 Fed. Reg. 19,349-50, §§ 826.20(a0(2), (6), (9), (b)(1)) (Apr. 6, 2020). The Court found insufficient justification for this exclusion and determined that it “may considerably narrow the statute’s potential scope.”
The FFCRA allows employees to use paid sick time when the employee is unable to work or telework if the employee meets any of the following six COVID-19 criteria:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual (not necessarily a family member) who is subject to a quarantine order or has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
- The employee is caring for its child if the school or childcare has been closed or the child care provider unavailable due to COVID-19 precautions; and
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
The FFCRA also allows employees to use the expanded family and medical leave when the employee is unable to work or telework due to a need to care for their child if the school or childcare has been closed or unavailable because of a public health emergency.
The DOL regulations’ “work-availability requirement” excludes paid sick time when the employer does not have available work when the requested leave is requested for three out of the six enumerated COVID-19 criteria: absences related to a quarantine order, caring for an individual with a quarantine order or childcare in the event of school or childcare closing/unavailability (criteria 1, 4 and 5 above). The “work-availability requirement” also applies to the expanded paid family and medical leave for childcare in the event of a school or childcare closing/unavailability.
The S.D.N.Y. Court’s decision vacates the “work-availability” requirement from the regulations, finding that the additional prerequisite was not reasonable. The Court determined that (1) the DOL lacks an explanation as to why the requirement only applies to 3 of the 6 paid sick time qualifying absences when nothing in the FFCRA suggests differential treatment of the six COVID-19 crtieria, and (2) the DOL’s reason that an employee would not able to work even if he or she did not have a qualifying condition is insufficient for such a consequential rule that could significantly narrow the statute’s scope. The S.D.N.Y. Court was concerned that the decrease in available work resulting from the nation-wide social distancing and subsequent decline in business would significantly limit the FFCRA’s applicability.
2. Narrowed Definition of Health Care Provider
The FFCRA and DOL regulations define “health care provider” to determine which employees can be excluded from receiving paid sick time or family medical leave under the FFCRA. The FFCRA defines “health care provider” as a doctor of medicine or osteopathy or any person determined by the Secretary to be “capable of providing health care services.” 29 U.S.C. § 2611(6) (citing the FMLA which supplies the relevant statutory definition for this section of the FFCRA). The DOL regulations expanding this definition include, among many other categories, “anyone employed at any…post-secondary educational institution offering heath care instruction.” Final Rule at 19,351 (§ 826.25).
The S.D.N.Y. Court determined that the DOL definition of “health care provider” is “vastly overbroad” compared to the FFCRA because it “includes employees whose roles bear no nexus whatsoever to the provision of healthcare services…and who are not even arguably necessary or relevant to the healthcare system’s vitality.” The DOL argued that hospital administrators and other non-medical providers are essential to a functioning health care system. The Court could not accept this definition because it would mean (and the DOL conceded) that an English professor, librarian or cafeteria manager at a university with a medical school would all be “healthcare providers” and would be excluded from leave benefits under the FFCRA.
3. Intermittent Leave and the Employer Agreement Requirement
The DOL regulations allow intermittent leave (1) only in certain situations and (2) only with the employer’s agreement to the intermittent leave request. The Court agreed that requiring certain qualifying absences for intermittent leave is sensible because it limits the spread of the virus by intermittent exposure from a possibly infected or contagious employee. However, the Court struck the employer consent requirement, finding that it did not “implicate the same public-health considerations.” The Court concluded: “[i]nsofar as it requires employer consent for intermittent leave, then the Rule is entirely unreasoned and fails.”
4. Timing Requirement for Leave Documentation
The DOL requires that an employee seeking paid sick time or paid family medical leave must provide the following documentation prior to taking such leave: (2) the employee’s name, (2) the requested date(s) for leave; (3) the qualifying reason for leave and (4) an oral or written statement that the employee is unable to work because of the qualifying reason for leave. The Court found that the DOL’s required timing for submitting this documentation is inconsistent with the FFCRA, which instead allows an employer to require reasonable notice procedures (including documentation) “after the first workday (or portion thereof) an employee receives sick time.” FFCRA §§ 3102(b), 5110(5)(E).
While the Court upheld the obligation to provide documentation, it struck down the inconsistent timing requirement.
While we expect the DOL will likely appeal this decision, employers face risk for relying on exemptions which have been struck down by a court decision. FFCRA-covered employers should review their paid leave administration under the FFCRA and consider how the decision can impact (1) determining when an employee has a qualifying need for paid leave; (2) the scope of the “health care provider” exemption, if it applies; (3) requiring employer approval for intermittent leave requests; and (4) the timing of when required documentation must be submitted to support leave requests.
Employers also should monitor upcoming DOL guidance or regulatory changes, legal challenges to the SDNY’s August 3rd decision, and any other cases that may arise that also challenge the DOL regulations.
With the continuous uncertainty and changing requirements regarding COVID-19 paid leave, employers should continuously review their existing workplace policies regarding leave, travel and teleworking to assess the potential impact of FFCRA on these policies and reach out to the Labor and Employment Group at Harter Secrest & Emery LLP with questions.