Alerts and Updates

Significant Changes to COVID-19 Leave Provisions After Court Vacates Some DOL Regulations Interpreting Paid Leave Under the FFCRA

August 7, 2020

Judge Oetken found four aspects of the DOL’s April 1, 2020, final rule implementing the FFCRA provisions to unduly restrict access to paid leave. 

Judge J. Paul Oetken of the Southern District of New York found the United States Department of Labor (DOL) exceeded its authority when it limited eligibility to leave under the Families First Coronavirus Response Act (FFCRA). New York v. U.S. Dept. of Labor, Case No. 20-cv-3020 (S.D.N.Y. Aug. 3, 2020). The decision affects employers in New York (unless the court issues a stay pending appeal). With limited exceptions, the FFCRA obligates employers of fewer than 500 employees to provide emergency sick and family leave to employees who cannot work for a number of reasons as a result of the COVID-19 pandemic. See our prior Alerts from March 19 and April 3 for details on the FFCRA’s requirements.

Judge Oetken found four aspects of the DOL’s April 1, 2020, final rule implementing the FFCRA provisions to unduly restrict access to paid leave. As discussed more fully below, the following were vacated by the order:

  • The broad definition of “health care provider” for purposes of the exclusion from FFCRA eligibility.
  • The provision stating that employees are ineligible for FFCRA leave if the employer does not have work for them.
  • The provision requiring employer approval before an employee can take intermittent leave under the FFCRA.
  • The provision requiring that employees provide documentation prior to taking FFCRA leave.

Definition of “Health Care Provider”

To prevent the shortage of healthcare providers in the midst of this pandemic, the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA) allow employers to elect to exclude healthcare providers from leave benefits. The Family Medical Leave Act (FMLA) defines a “health care provider” as “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate),” or “any other person determined by the Secretary to be capable of providing health care services.” 29 U.S.C. § 2611(6)(B). Rather than adopt the definition of the FMLA, the DOL expanded the definition greatly to “anyone employed at” a doctor’s office, hospital, medical school, nursing home or “where medical services are provided,” including contractors hired by these medical providers. The DOL has conceded that even an English professor, librarian or cafeteria manager at a university with a medical school would all be healthcare providers under the DOL’s regulations. Judge Oetken found the DOL’s definition over-broad because it excluded paid leave benefits to workers based on the identity of their employer rather than the role or duties of the employee. Employers who elected to exclude healthcare providers from leave benefits are now cautioned to apply the narrow definition provided under the FMLA.

Work-Availability Requirement

The EPSLA and EFMLEA grant paid leave to employees who are “unable to work (or telework) due to a need for leave” that is caused by the reasons set forth under these acts. FFCRA §§ 101(a)(2)(A), 5102(a). The DOL’s regulations exclude employees whose employers do not have work for them, such as those furloughed by the temporary shutdown of businesses. Judge Oetken vacated this work-availability requirement, reasoning that the DOL exceeded its authority by imposing differential treatment contrary to the text of the FFCRA. The implication is that employees could be eligible for paid leave under the FFCRA without regard to whether their employers had work for them to perform. For example, a furloughed employee may now be eligible for paid leave under the FFCRA.

Employer Consent Requirement for Taking Intermittent Leave

Pursuant to the DOL’s regulations, employees could take less than full leave only when they did not pose an infection risk and only when the employee and employer had agreed to intermittent leave. While Judge Oetken acknowledged the concern that intermittent leave could pose infection risk and upheld this provision to the extent it bans intermittent leave based on conditions that correlate with a higher risk of COVID-19 infection (e.g., employee subject to quarantine or isolation order), he invalidated the requirement that an employer provide consent for intermittent leave. He found the employer consent requirement imposed by the DOL unreasonable.

Requirement That Employee Provide Documentation Attesting to Their Need for Leave Before Taking It

The DOL’s regulations require an employee to furnish documentation of need for FFCRA leave “prior to taking” it. Judge Oetken vacated this timing requirement. The substance of the documentation requirements set forth under the FFCRA regulations remain in effect, including, but not limited to: (i) the reason for leave, (ii) the duration of the requested leave, (iii) the name of the governmental entity that issued the quarantine or isolation order, if applicable, and (iv) the name of the child being cared for, if applicable.

What This Means for Employers

Judge Oetken’s decision vacating four aspects of the DOL’s regulations must be followed by employers in New York unless the decision is stayed or reversed. Employers should revisit their processes for evaluating FFCRA leave requests to ensure compliance. As employees are now deciding whether to return to work or care for children whose childcare facilities or schools are closed, employers should be prepared for an uptick in requests for leave and evaluate them while considering Judge Oetken’s decision. Employees who were formerly denied requests for leave may now be entitled to retroactive application of FFCRA pay based on this ruling.

Duane Morris will continue to monitor developments that may affect this decision, including DOL announcements and updates, particularly those concerning the scope of the healthcare provider exemption. Additionally, the DOL could appeal the decision, or other federal courts may decide to follow or decline it. We will closely watch for changes that have the potential to affect employers in New York and beyond and provide analysis and updates.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, Maria Cáceres-Boneau or any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.