On August 3, 2020, in a lawsuit filed by the State of New York, United States District Court Judge J. Paul Oetken of the United States District Court for the Southern District of New York issued an opinion and order (Order) vacating four key aspects of the final rule to the Families First Coronavirus Response Act (FFCRA), promulgated by the United States Department of Labor (DOL).

As a result of the Order, more employees will be entitled to obtain paid sick leave and family leave benefits under the FFCRA.

As you might recall, in March 2020, Congress passed the FFCRA, which among other things, provides employees with paid sick leave if they are unable to work (or telework) due to the following COVID-19 related reasons. The employee:

1. is subject to Federal, State, or local quarantine or isolation order related to COVID-19; or
2. has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
3. is experiencing symptoms of COVID-19 and is seeking medical diagnosis;
4. is caring for an individual subject to a quarantine/isolation order or been required to self-quarantine; or
5. is caring for a son or daughter because of school closure or unavailable child care related to COVID-19; or
6. 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 provides employees with paid family leave if they are unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

On April 1, 2020, the DOL issued its Final Rule implementing the FFCRA and providing clarity on the DOL’s interpretation of the FFCRA.

The New York lawsuit against the DOL challenges the DOL’s Final Rule in four key respects: the rule’s work-availability requirement, its definition of health care providers, its documentation requirement, and its intermittent leave policy.

Work-Availability Requirement

Under the Final Rule, an employer must have work available in order for the employee to qualify for sick leave or family leave. The suit alleges that the Final Rule imposing this “work –availability” requirement unlawfully excludes employees whose employers do not have work for them to perform from receiving FFCRA paid sick leave and family leave benefits. The Court ultimately agreed with New York, finding that the work availability requirement is inconsistent with the FFCRA and the DOL’s bare bone’s explanation for imposing the requirement was deficient. By striking this aspect of the Final Rule, the Court suggests an employer without work is nonetheless responsible for providing employees with FFCRA leave benefits. Employers without work who are faced with a leave request under the FFCRA may wish to engage counsel in order to obtain updates on any DOL guidance related to this issue and the most up to date status of the Court’s Order prior to granting or denying the leave request. It is important to note that although employers must front the cost of FFCRA leave, they receive a federal tax credit in the same amount for paying out the leave.

Definition of Health Care Provider

Second, the suit alleges the Final Rule’s expansive definition of “health care providers” unreasonably allows employers to deny employees who do not provide health care services to patients from utilizing FFCRA paid sick leave and family leave benefits. Again, the Court agreed with New York and struck down the Final Rule’s expansive “health care providers” definition, following instead the definition of health care provider enunciated in the Family and Medical Leave Act (FMLA).

As a result, if an employer seeks to exempt an employee from taking FFCRA sick leave and family leave benefits based on the employee’s status as a health care provider or first responder, the employer should apply the FMLA’s definition of health care provider. The FMLA defines a health care provider as 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). The DOL includes nurse practitioners, nurse midwives, and physician assistants, among others as capable of providing health care services. Accordingly, any exemption should be limited to these employees. In our view, the exemption would not apply to employees, like receptionists, janitors, or other support personnel who may work on behalf of a health care provider but are not engaged in the work or capable of providing health care services.

Documentation Requirement

Third, the suit alleges the DOL exceeded its authority by conditioning an employee’s ability to take paid sick and family leave on the employee’s ability to provide supporting documents prior to taking FFCRA leave. The Court found the Final Rule’s document requirement reflected a “different” and “more stringent precondition” to leave which was inconsistent with the FFCRA’s notice requirements. On that basis, the Court concluded that the FFCRA notice requirements were sufficient to determine what information an employee had to provide in order to obtain FFCRA leave benefits, and held the Final Rule’s documentation requirements could not stand.

Therefore, employers processing FFCRA family leave requests should follow the notice requirements set forth under the Emergency Family and Medical Leave Expansion Act (EFMLEA) of the FFCRA, and grant requests upon receiving reasonable advance notice from an employee when the leave is foreseeable, and/or upon any notice if family leave requested is unforeseeable. When processing sick leave requests, employers may follow the notice requirements outlined in the Emergency Paid Sick Leave Act (EPSLA) of the FFCRA, and require employees to continue to provide notice of the employee’s continued need to take sick leave after the employee’s first workday (or portion thereof) using FFCRA sick leave.

Intermittent Leave Policy

Lastly, the Court addressed the proper interpretation and application of the Final Rule on intermittent leave. The Final Rule states:

1. If the Employer and Employee agree, an Employee may take up to the entire portion of Paid Sick Leave or Expanded Family and Medical Leave intermittently to care for the Employee's Son or Daughter whose School or Place of Care is closed, or Child Care Provider is unavailable, because of reasons related to COVID-19. Under such circumstances, intermittent Paid Sick Leave or paid Expanded Family and Medical Leave may be taken in any increment of time agreed to by the Employer and Employee.
2. An Employee may not take Paid Sick Leave intermittently if the leave is taken for any of the reasons specified in § 826.20(a)(1)(i) through (iv) and (vi). Once the Employee begins taking Paid Sick Leave for one or more of such reasons, the Employee must use the permitted days of leave consecutively until the Employee no longer has a qualifying reason to take Paid Sick Leave.

In its suit, New York asserted that the DOL exceeded its authority by prohibiting employees from taking FFCRA paid sick leave intermittently when the leave did not relate to the employee’s caring for their child due to unavailability of childcare caused by COVID-19.

While the Court found the DOL had the authority to enunciate a rule on intermittent leave in the absence of the FFCRA addressing the issue and could prohibit intermittent leave when the leave did not relate to an employee’s caring for their child due to unavailability of school or childcare caused by COVID-19, the Court held that the DOL could not condition the intermittent leave on employer consent. The Court further explained that while sick leave taken for the other five reasons had to be taken consecutively, any unused leave balance was not forfeited and could be utilized if a second instance requiring the sick leave arose.

Therefore, where an employee requests intermittent leave in order to care for their child due to unavailability of school or childcare caused by COVID-19, an employer should grant the request so long as the employee otherwise provides the appropriate notice for the leave. Furthermore, where an employee requests sick leave for any of the other five qualifying reasons, the sick leave must run consecutively until it is no longer needed by the employee. Should an employee fail to exhaust their FFCRA sick leave balance during the employee’s first sick leave request, an employer should grant any subsequent sick leave request made by the employee so long as the employee provides the appropriate notice for the subsequent leave.

What to Expect Next

The DOL or Congress may allow the Order to stand or take steps to address the concerns raised by the Judge’s Order. The DOL can seek an appeal of the Judge’s Order or request a stay of the Order pending appeal. The DOL may also opt to re-write the final rule to the FFCRA. Congress, on the other hand, may decide that legislative action is the most effective way to square the FFCRA with the Judge’s Order, especially if Congress intends to extend the paid leave benefits beyond their current expiration date of December 31, 2020.

Also at issue is whether other courts will follow the current Order, or whether states will elect to amend their own mini-FFCRAs based on the principles espoused in the Order. As the landscape for FFCRA leave continues to change and the pandemic endures, employers processing leave requests under the FFCRA should contact counsel to discuss how the Order and other legal developments affect their current leave processes.