Employers Take Note: Federal New York Judge Vacates Four FFCRA Rules

August 4, 2020

On August 3, 2020, a New York federal district court judge injected a great deal of uncertainty into COVID-19 paid-leave law. The Honorable Judge Paul Oetkein of the Southern District of New York vacated four Families First Coronavirus Response Act (“FFCRA”) regulations in the U.S. Department of Labor’s (“DOL”) Final Rule. The court order impacts regulations that govern the Emergency Family and Medical Leave Expansion Act (“EFMLAEA”) and Emergency Paid Sick Leave Act (“EPSLA”). 

This is just one district court in New York, and the DOL may well appeal. But the court did not purport to limit the scope of its order invalidating these regulations to just the State of New York, so unless and until this order is reversed, it cannot be ignored even by employers in other states. 

The four vacated provisions are, as follows:

1. DOL Work-Availability Requirement – Vacated

a. Background: The FFCRA makes EFMLAEA and EPSLA paid leave available only when the employee “is unable to work (or telework) due to a need for leave because” of qualifying circumstances. The DOL’s Final Rule prohibits an employee from taking such leave “where the Employer does not have work for the Employee.” See 29 C.F.R. § 826.20(a)(2), (6), (9), (b)(2). 

b. The Ruling: The court vacated this work-availability requirement, concluding that the requirement is not a permissive interpretation of the FFCRA. In the court’s view, the requirement was based on an interpretation that was limited to only some of the FFCRA leave grounds.

2. DOL Definition of Health-Care Provider – Vacated

a. Background: The FFCRA’s EFMLAEA and EPSLA provide: an “employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of” the FFCRA. In addition, the FFCRA empowers the DOL to issue regulations that “exclude certain health care providers and emergency responders from” the Acts’ scopes, by excluding them from the definition of “employee.” The DOL exercised that rulemaking authority to broadly define “employee” in this context to include, for example, “anyone employed at any doctor’s office, hospital, health care center, clinic, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity.” 29 C.F.R. § 826.30(c)(1)(i).

b. The Ruling: The court vacated the Final Rule’s definition because, in the court’s view, it is overbroad, and wrongly focuses “on the identity of the employer,” instead of the employee. The court believed that the definition requires some type of “role-specific determination” to evaluate whether an employee is sufficiently doing the work of health care or emergency response so that she qualifies for the exemption, or may be excluded by the DOL. The court rejected the DOL’s argument that the breadth of the definition was required to ensure “a functioning healthcare system during the pandemic.”

3. DOL Requirement of Employer Consent for Intermittent Leave – Vacated 

a. Background: The FFCRA does not address intermittent leave. But the DOL’s Final Rule permits FFCRA intermittent leave, with two relevant qualifiers. First, the employee may take such leave “only if the Employer and the Employee agree.” 29 C.F.R. § 826.50(a). Second, employees cannot take such leave for three circumstances: (1) the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) the employee is caring for an individual who is subject to such a quarantine or isolation order or for an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions. 29 C.F.R. § 826.50(b)(2). 

b. The Ruling: The court vacated the consent limitation, but upheld the qualifying-circumstance limitation. The court vacated the consent limitation as being “unreasoned” in its scope. But the court upheld the qualifying-circumstance limitation as supported by a concern that persons with the prohibited conditions would present a higher risk of at-work viral infection if they returned to work between periods of intermittent leave due to the identified qualifying circumstances.

4. DOL Pre-Leave Documentation Requirement – Vacated

a. Background: The FFCRA does not address leave-related documentation. But the DOL’s Final Rule requires an employee to submit to his employer, “prior to taking” such leave, “documentation containing” specified information: the employee’s name, date for which leave is requested, qualifying reason for the leave, and “[o]ral or written” statement that the employee is unable to work because of the qualified reason for leave. 29 C.F.R. § 826.100(a).

b. The Ruling: The court vacated “the requirement that the documentation be provided before taking leave.” The court reasoned that, although the FFCRA does not address pre-leave documentation, it does address pre-leave notice. It provides, as to the EFMLAEA, “[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.” And it provides, as to the EPSLA, “[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.” The court reasoned that the DOL’s pre-leave documentation rule was in conflict with those two provisions, to the extent that the documentation requirement was “a precondition to leave.” But the court emphasized that it was vacating only “the temporal aspect of the documentation requirement” (suggesting that the same documentation may be still be required after the leave begins or ends).

The Arthur Chapman COVID-19 Task Force has been tracking the twists and turns of this pandemic—particularly its legal dimensions—since its beginning. We stand ready to answer your questions about what this order means for your business. The uncertainty continues. But, as always, we’re here to help.