As if navigating employee leave amid the COVID-19 pandemic wasn’t hard enough, a New York federal judge recently struck down parts of the Department of Labor’s (DOL) regulations implementing the Families First Coronavirus Response Act (FFCRA). According to District Judge J. Paul Oetken, several features of the DOL’s Final Rule are “invalid.”

Families First Coronavirus Response Act

As discussed in greater detail in prior articles, the FFCRA provides that covered employers must provide the following leave to all employees:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

A covered employer must provide up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is 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, provided that the employee has been employed for at least 30 days.

The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to most private employers with fewer than 500 employees. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

Court Vacates Provisions of DOL Coronavirus Leave Regulations

In April, the DOL promulgated its Final Rule implementing the FFCRA. The State of New York subsequently filed suit, alleging that several features of DOL’s Final Rule exceed the agency’s authority under the statute. New York specifically challenged four features of that regulation.

New York challenged the so-called “work-availability” requirement, under which employees whose employers “do[] not have work” for them are excluded from receiving FFCRA benefits in certain situations. The suit also argued that the Final Rules definition of “health care provider” is unnecessarily overbroad. As Judge Oetken noted in his opinion, 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 Rule.

New York also argued that the Final Rule’s requirement that an employee obtain employer consent for intermittent FFCRA leave exceeds the DOL’s authority under the statute. The Final Rule 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.

The suit also challenged the requirement that documentation be provided by an employee before taking FFCRA leave. The Final Rule specifically requires that employees submit to their employer, “prior to taking [FFCRA] leave,” documentation indicating, inter alia, their reason for leave, the duration of the requested leave, and, when relevant, the authority for the isolation or quarantine order qualifying them for leave.

While Judge Oetke acknowledged that the DOL faced pressure to act quickly to implement the FFCRA, he ultimately concluded that the DOL exceeded its authority. “This extraordinary crisis has required public and private entities alike to act decisively and swiftly in the face of massive uncertainty, and often with grave consequence,” Oetken wrote. “But as much as this moment calls for flexibility and ingenuity, it also calls for renewed attention to the guardrails of our government. Here, DOL jumped the rail.”

Under Judge Oetke’s decision, the work-availability requirement; the definition of “health care provider”; the requirement that an employee secure employer consent for intermittent leave; and the requirement that the documentation be provided before taking leave are all vacated. However, the remainder of the Final Rule, including the outright ban on intermittent leave for certain qualifying reasons and the substance of the documentation requirement stand.

What’s Next?

The DOL is likely to appeal the ruling. In the meantime, employers will face uncertainty regarding the provisions of the Final Rule impacted by the decision. To minimize the legal risks, we encourage employers facing FFCRA compliance issues to consult with an experienced employment attorney.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Howard Bader, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.