On August 3, 2020, a New York federal court invalidated four provisions of the U.S. Department of Labor's regulations implementing the Families First Coronavirus Response Act (FFCRA). United States District Judge J. Paul Oetken of the Southern District of New York held that certain portions of the regulations unlawfully restricted workers' eligibility for emergency family leave and paid sick leave under the FFCRA. The four provisions vacated by the court are the "work availability" requirement, the "health care provider" definition, employer consent for intermittent leave for childcare reasons, and the requirement that documentation supporting the need for leave be submitted before leave is taken.

Although the decision applies to New York workers, all employers subject to the FFCRA should apply the regulations in accordance with the court’s decision in order to minimize risk of claims that they wrongfully denied FFCRA benefits. Ballard Spahr’s sample FFCRA policy that complies with the DOL regulations without giving effect to the newly invalidated provisions is here.

Background

The FFCRA, signed into law on March 18, 2020, obligates private sector employers with fewer than 500 employees and certain public agencies to offer 80 hours of emergency paid sick leave (EPSL) to employees who are unable to work due any one of six qualifying conditions related to the COVID-19 pandemic. Qualifying employers are also obligated to offer 12 weeks of partially paid extended family leave (FMLA-PHE Leave) to employees who are unable to work because they must care for a dependent child whose school is closed due to COVID-19. More information about the FFCRA is available here. Congress charged the DOL with administration of the statute, and on April 1, 2018, the DOL issued a Final Rule implementing the FFCRA’s provisions.

On April 14, 2018, the State of New York filed suit against the DOL claiming it exceeded its statutory authority in formulating the Final Rule "work availability" requirement, "healthcare provider" definition, intermittent leave restriction for childcare reasons, and certain documentation requirements, all of which the court agreed violated the text and purpose of the FFCRA by unduly restricting paid leave.

The Vacated Provisions of the FFCRA Regulations

A. The “Work-Availability” Requirement

As a reminder, the EPSL grants paid leave to employees who are “unable to work (or telework) due to a need for leave because” of any of six COVID-19 related criteria. Likewise, the FMLA-PHE Leave applies to employees unable to work or telework due the need to care for a child due to the public health emergency. The Final Rule implementing each of these provisions excludes from benefits those employees whose employers “do not have work” for them. In other words, according to the DOL, an absence from work necessitated by the employer’s slowdown or shutdown of business is not a leave because of any of the six qualifying COVID-19 criteria under the FFCRA (i.e. quarantine/isolation order for oneself or caring for an individual subject to such an order; healthcare provider advice to self-quarantine; seeking a medical diagnosis for COVID-19 symptoms; caring for a child whose school or place of care is closed; or experiencing “any other substantially similar condition”).

New York argued, and the court agreed, that an employee remains eligible for FFCRA paid leave if they otherwise have a qualifying reason for leave, even if there is a lack of work with the employer due to a shutdown or slowdown of business.

B. The Definition of “Health Care Provider”

Under the FFCRA, employers may elect to exclude employees defined as “health care providers” from the leave benefits. The DOL adopted an extremely broad definition of “health care provider,” encompassing all employees of an employer in a health care institution or entity, including, but not limited to, any doctor’s office, hospital, healthcare center, post-secondary educational institutions offering health care instruction, medical school, health department or agency, pharmacy, or any facility that performs laboratory and medical testing. Indeed, the DOL conceded that an English professor, librarian, or cafeteria manager at a university with a medical school would all be “health care providers” under the Final Rule and, thus, subject to exclusion from FFCRA paid leave benefits.

The court rejected the DOL’s argument that the broad definition serves to exempt employees who are essential to maintaining a functioning healthcare system during the pandemic. In doing so, the court explained that the DOL’s rationale cannot supersede the FFCRA’s unambiguous terms, which required the Secretary of the DOL to determine that the employee is “capable of furnishing healthcare services” when designating who an employer may exclude from benefits.  The focus should not hinge on the employer’s identity as a health care provider. Consequently, employers should not apply the Final Rule’s definition of “health care provider” to deny FFCRA benefits to certain classes of employees, but should instead consult legal counsel and be guided by the FMLA’s definition, which is essentially limited to a doctor or someone capable of providing health care services.

C. Intermittent Leave

The court upheld the Final Rule’s prohibition on intermittent leave for conditions that logically correlate with a higher risk of viral infection, such as a government order to isolate or quarantine, advice from a healthcare provider to self-quarantine due to concerns about COVID-19, experiencing symptoms of COVID-19, taking care of an individual who is either subject to a quarantine or isolation order or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19, or are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services. An employee taking leave for these reasons must take his or her leave consecutively until his or her need for leave abates. Thereafter, the employee retains any remaining paid leave, and may resume leave should another qualifying condition arise.

However, the court disagreed with the Final Rule’s requirement that an employer must provide consent for an employee to use leave intermittently due to school or childcare closures. In those circumstances, there is no need for employer consent because there is no risk of viral transmission.

D. Documentation Requirements

The FFCRA provides that before taking FMLA-PHE Leave “[i]n any case where the necessity for [leave] is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.” With respect to EPSL, the FFCRA provides that “[a]fter 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.”

However, the Final Rule requires that, prior to taking either version of FFCRA leave, employees submit documentation indicating the reason for the leave, the duration of the requested leave and, when relevant, the authority for the isolation or quarantine order qualifying them for leave.

The court determined that the two directives “are in unambiguous conflict.” The Final Rule’s blanket requirement to furnish documentation before taking leave renders the FFCRA notice exception for unforeseeable leave and the one-day delay “completely nugatory” and, as such, vacated the temporal aspect of the documentation requirement.

Conclusion and Implications

Neither New York nor the DOL contested the severability of the Final Rule’s challenged provisions. The court held that the remainder of the Final Rule could operate as promulgated in the absence of the invalid provisions.

What does this mean for employers seeking to comply with the FFCRA going forward?  Although the case was brought on behalf of New York and its residents, the application of the court’s decision should not be limited to New York workers. Indeed, employers everywhere seeking to minimize exposure to claims that they have unlawfully denied FFCRA benefits to certain employees should ensure that they are implementing FFCRA leave under the Final Rule without giving effect to the newly invalidated provisions.

Specifically, employers should not implement a requirement that work be otherwise available to employees in order to qualify for FFCRA leave. Employers should also permit employees to take FFCRA leave intermittently (presuming the employee has requested leave under a condition that otherwise qualifies for intermittent leave), and should not require employees to submit leave documentation prior to taking leave. Finally, employers in the health care industry should not apply the Final Rule’s definition of “health care provider” to deny benefits to all employees of a health care provider.  Rather, employers should consult with legal counsel and the FMLA’s definition of a “health care provider,” 29 U.S.C. § 2611(6), while monitoring DOL guidance, which may provide a modified definition in the coming weeks.