Update as of 9/14/20: As we anticipated below, the US Department of Labor has issued revised regulations in response to the SDNY decision. Please see our post here for details.
Update as of 9/10/20: As discussed below, previously, a federal judge in New York’s Southern District invalidated several aspects of the DOL’s guidance regarding the FFCRA – including the exemptions for paid sick and family leave that affected many health care workers. On September 3, the DOL submitted a Final Rule titled “Paid Leave Under the Families First Coronavirus Response Act” to the Office of Management and Business (“OMB”), which is still pending regulatory review.
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On August 3, 2020, the U.S. District Court for the Southern District of New York struck down certain portions of the U.S. Department of Labor’s (the “DOL’s”) Rule implementing the Families First Coronavirus Response Act (the “FFCRA”). The legal impact of this Court’s ruling outside of the Southern District of New York could be significant, but we expect further developments through agency and court action.
History of the FFCRA Final Rule
On March 18, 2020, President Trump signed the FFCRA into law. Among other things, the new law created the Emergency Family and Medical Leave Expansion Act (the “EFMLEA”) and the Emergency Paid Sick Leave Act (the “EPSLA”), each of which creates excused time off and paid leave for certain employees dealing with COVID-19. Just as the FFCRA went into effect on April 1, 2020, the DOL issued its “Paid Leave under the Families First Coronavirus Response Act” (the “Final Rule”). As we previously discussed here, the Final Rule, which was published in the Federal Register on Monday, April 6, 2020, provided both clarification and new information regarding the implementation of the FFCRA.
New York’s Challenge to the Final Rule
On April 14, 2020, the State of New York challenged the DOL’s Final Rule under the Administrative Procedure Act, arguing that it “unlawfully narrows workers’ eligibility for emergency family leave and paid sick leave guaranteed by the [FFCRA], denying vital financial support and exposing millions of American workers and their communities to further transmission of infectious disease in the middle of a once-in-a-century pandemic.”
Ultimately, while the Court acknowledged that this “extraordinary crisis has required public and private entities alike to act decisively and swiftly in the face of massive uncertainty,” it ruled that several aspects of the DOL’s Final Rule are invalid. Specifically, the four features of the Final Rule that were struck down are:
- The “Work-Availability” Requirement. As background, both the EPSLA and the EFMLEA grant paid leave to employees who are “unable to work (or telework) due to a need for leave” specified in the FFCRA. The Final Rule, however, included language indicating that employees whose employers do not have work for them are not eligible for paid leave under the FFCRA. This portion of the Final Rule which excludes from eligibility those employees who do not have work available to them was vacated from the Final Rule. In other words, under this Court’s ruling, even employees for whom no work is available may take paid leave under the FFCRA for a qualifying reason.
- The Definition of “Health Care Provider.” The FFCRA provides that employers of health care providers and emergency responders may exclude such employees from the EFMLEA and the EPSLA. The Final Rule’s definition of “health care provider” was, as the Court put it “expansive” and “vastly overbroad.” Therefore, the Court vacated the definition of “health care provider” (for purposes of who an employer may elect to exclude from leave benefits) from the Final Rule. Unfortunately, the Court did not define what workers are considered to be “health care providers.” While the FFCRA itself contains a definition that references the Family and Medical Leave Act, it remains unclear if that definition uniformly defines who employers may deem ineligible for leave under the FFCRA.
- Employer Consent for Use of Intermittent Leave. The Court explained that “[t]he 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.” While the Court upheld the part of the Final Rule that bars intermittent leave for certain qualifying conditions that implicate an employee’s risk of viral transmission, the Court vacated the part requiring an employee to obtain employer consent in order to use intermittent leave for the remaining qualifying conditions that do not implicate the same public health considerations. Thus, at least in this Court’s opinion, intermittent leave is a statutory right under the FFCRA for leave that does not implicate public-health considerations. This would mean, for example, that an employee who needs leave to care for a child under the EFMLA due to the child’s school or place of care closing, or the child care provider being unavailable due to reasons related to COVID-19, could use such leave intermittently.
- The Documentation Timing Requirements. The Final Rule requires that employees submit to their employer certain documentation (indicating, for instance, their reason for leave, the duration of the requested leave, etc.) prior to taking leave under the FFCRA. The Court specifically vacated this timing requirement – namely, that the documentation be provided before taking leave.
More to Come
The extent of the applicability of the Court’s ruling is complicated and unclear. While it clearly applies to employers in the Southern District of New York, employers outside of that jurisdiction may have arguments to support that it does not apply to them. We expect that the DOL will file an appeal in the coming days, which could eventually result in a “stay” of the Court’s ruling, and may lead to the Final Rule’s reinstatement. We also expect that other states may bring similar lawsuits challenging portions of the Final Rule. The DOL also could take action to amend the Rule.
This is a developing matter and one we will continue to monitor. In the meantime, if you have any questions or require any assistance as you consider how the FFCRA and these developments may impact your organization and its obligations, please do not hesitate to contact:
- Kevin Stella at (317) 977-1426 or kstella@hallrender.com;
- Robin Sheridan at (414) 721-0469 or rsheridan@hallrender.com;
- Jon Rabin at (248) 457-7835 or jrabin@hallrender.com;
- Mary Kate Liffrig at (720) 282-2033 or mliffrig@hallrender.com; or
- Your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
