In response to the coronavirus pandemic, Congress passed the Families First Coronavirus Response Act (FFCRA), which provides two different types of paid leave for employees who are unable to work due to COVID-19 related reasons. The Emergency Family Medical Leave Expansion Act (EFMLEA) provides leave to care for a dependent child whose school or place of care has closed, or whose childcare provider has become unavailable due to COVID-19 related reasons. The Emergency Paid Sick Leave Act (EPSLA) provides paid sick leave to employees that meet one of six qualifying COVID-19 related conditions.

Shortly after the U.S. Department of Labor (DOL) issued its Final Rule implementing the FFCRA (Final Rule), New York State filed suit in New York federal court against the DOL, arguing that several provisions of the Final Rule were unduly restrictive and impermissibly limited or burdened an employee's exercise of paid leave under the FFCRA. Simultaneously, New York filed a summary judgment motion that United States District Judge Paul Oetken ruled on today. The court issued the following rulings:

Work Availability: Under the EPSLA and EFMLEA, employees who are unable to work or telework may be eligible for FFCRA leave. New York challenged the Final Rule's work-availability requirement on the grounds that it impermissibly prevents employees from being eligible for paid leave when they are otherwise available to work, but their employer has a decrease in work. The DOL countered that the Final Rule implies a but-for causal relationship and an employee would not meet the requirements if the inability to work was due to lack of work and not due to an inability to work. The court struck down this requirement on the grounds that "the agency's barebones explanation for the work-availability requirement is patently deficient."

Health Care Provider Definition: Under FFCRA, employers may elect to exclude "health care providers" from FFCRA leave benefits. The court found that the Final Rule's definition of "health care provider" to be "vastly overbroad" because it includes employees who do not provide the actual healthcare services that their "health care" employer provides (e.g., office personnel or cafeteria workers at medical facilities). Accordingly, the court invalidated the DOL's overly broad definition of health care provider.

Intermittent Leave: The FFCRA statute did not address the issue of whether intermittent leave was available. The Final Rule permits employees to take EPSL or EFML on an intermittent basis in certain situations that do not implicate the employee's risk of viral transmission (e.g., leave to care for a child whose school has closed), provided the employer consents to such intermittent leave use. The court found there was no justification for the DOL to require employer consent to intermittent leave and struck down this requirement.

Documentation Requirement: The Final Rule requires the employee to provide the employer with certain documentation prior to taking FFCRA leave. The court found that the DOL documentation requirements, to the extent that they are a precondition to leave, are impermissible and inconsistent with the statutory scheme that provided certain exceptions for advance notice of the need for leave.

Although the court acknowledged the DOL was under "considerable pressure" to quickly release the Final Rule, it concluded by noting the "DOL jumped the rail" in drafting the FFCRA beyond the bounds of the DOL's authority. As this ruling may vastly expand the scope of employees who may be eligible for FFCRA leave, Lewis Brisbois will continue to monitor developments in this area, including whether any appeals are filed, which might stay the ruling, or whether the DOL promulgates revised rules. In the interim, employers should consult with counsel to evaluate what changes may be required to its FFCRA leave management process, intermittent leave approval, and required documentation.

Originally published August 3, 2020.

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