As discussed at length in an earlier Taft update, the Department of Labor (DOL) issued a Final Rule in April 2020 to implement the paid sick leave requirements in the Families First Coronavirus Response Act (FFCRA). The State of New York challenged the Final Rule in federal court, alleging that the DOL's narrow interpretation of the FFCRA conflicted with the statute's text and Congress's purpose in enacting it. On Aug. 3, 2020, a judge in the Southern District of New York agreed in a decision that vacates certain aspects of the Final Rule.
The court's decision affects four discrete aspects of the Final Rule: (1) the work-availability requirement; (2) the definition of "health care provider"; (3) the requirement for employer consent to intermittent leave; and (4) the requirement that documentation be provided before taking leave. All other aspects of the Final Rule remain in force.
The Work-Availability Requirement
The court rejected the Final Rule's requirement that an employer must have work available for the employee to perform in order for the employee to qualify for leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and/or the Emergency Paid Sick Leave Act (EPSLA). This exclusion, the court found, "is hugely consequential for the employees and employers covered by the FFCRA, because the COVID-19 crisis has occasioned the temporary shutdown and slowdown of countless businesses nationwide, causing in turn a decrease in work immediately available for employees who otherwise remain formally employed." Although the court found that the FFCRA's text was ambiguous on this point, the court concluded that the DOL's explanation for the work-availability requirement was "patently deficient" to support such a "monumental policy decision."
The court's reasoning leaves open the possibility that the DOL could attempt to re-issue the work-availability requirement after another round of rulemaking, in which it would provide additional support for its view that the availability of leave benefits under the FFCRA depends on the availability of work. But the upshot for now is that it's unclear whether employers with fewer than 500 employers must provide leave under the EFMLEA or the EPSLA even when they have no work for employees to perform.
The Definition of "Health Care Provider"
The court also rejected the Final Rule's definition of the term "health care provider." As the court recognized, "employers may elect to exclude 'health care providers' from leave benefits, [so] the breadth of the term 'health care provider' has grave consequences for employees." The Final Rule defined the term broadly to include any employee who works for an employer that provides medical services - including, for example, "an English professor, librarian, or cafeteria manager at a university with a medical school." The court concluded that this broad definition contradicted the FFCRA's text, which focuses on the work of the employee as opposed to the business of the employer.
Unlike the work-availability requirement, the court's decision does not leave room for the DOL to reinstate its definition of "health care provider" merely by offering a more adequate explanation for its position. Thus, unless and until the court's decision is overturned or the DOL promulgates a narrower definition, the "health care provider" exclusion likely reverts to its definition under longstanding FMLA regulations. The determination of which employees are "health care providers" must be made on a case-by-case basis. A longstanding DOL regulation defines "health care provider" for purposes of the FMLA. That regulation explicitly includes the following (subject to compliance with licensure requirements):
- Doctors of medicine or osteopathy.
- Clinical psychologists.
- Clinical social workers.
- Nurse practitioners.
- Physical assistants.
- Christian Science Practitioners (subject to limitations)
The regulation also has a general provision that includes a professional "from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits." Thus, although RNs and others are not explicitly included in the definition, this provision allows some additional flexibility, particularly for self-insured employers. For those who are not self-insured, applicable plan terms will likely control the reach of this additional provision.
The court also rejected part of DOL's regulations regarding intermittent use of FFCRA leave. Recognizing that the FFCRA does not address intermittent leave at all, the court stated that the DOL acted within its regulatory authority when it limited "the exercise of intermittent leave to circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees." However, because the DOL provided no explanation for its blanket requirement that employers consent to any intermittent leave, the court struck the employer-consent requirement.
Thus, intermittent leave remains unavailable for those FFCRA-covered conditions that "logically correlate with a higher risk of viral infection," which include employees who are subject to government quarantine or isolation order related to COVID-19; have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; are experiencing symptoms of COVID-19 and are taking leave to obtain a medical diagnosis; or are taking care of an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19. For employees who seek FFCRA leave "solely to care for the employee's son or daughter whose school or place of care is closed," the court's decision rejects DOL's requirement of employer consent before intermittent FFCRA leave is available.
Finally, the court rejected the requirement in the Final Rule that employees must provide documentation of their need for leave "prior to taking [FFCRA] leave." This requirement, the court found, contradicts the text of the FFCRA, which requires prior notification only when it is foreseeable (in the case of the EFMLEA) or after the first workday that the employee receives paid sick leave (in the case of the EPSLA).
The Southern District of New York's decision isn't necessarily the final word on the FFCRA. The DOL could cure some - but not all - of the problems that the court identified with the Final Rule after another round of rulemaking, or the agency could appeal the decision. However, given that the FFCRA expires at the end of this year, it's uncertain whether these actions could be taken in time to provide meaningful guidance about employers' obligations under the FFCRA.
Taft will provide further updates in the event that the DOL appeals the decision, issues new rulemaking, or updates its Frequently Asked Questions to reflect the decision. In the meantime, please contact a member of Taft's Employment & Labor Relations practice group with any questions regarding how the FFCRA affects your organization.
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