Effective April 1, 2020, Congress passed the Families First Coronavirus Response Act (FFCRA) obligating employers to provide Emergency Paid Sick Leave (EPSL) and Emergency Family Leave (EFL) to employees who are unable to work because of the pandemic. The U.S. Department of Labor (DOL) issued a Final Rule effective April 6, 2020, expanding on the requirements of the FFCRA that would go into effect.
Following the publication of the Final Rule, the State of New York sued the DOL in federal district court arguing that several features of the Final Rule exceeded the agency’s authority under the statute. The U.S. District Court for the Southern District of New York, issued an order on August 3, vacating certain provisions of the Final Rule. The open question as a result of the decision is whether it applies only in the state of New York or if it applies nationwide
The Court’s decision has produced several ambiguities regarding enforcement of the FFCRA.
Questions Arising from the Court Case
- Is an employee eligible for FFCRA leave if the employer doesn’t have work available?
The Final Rule excludes employees from FFCRA leave if their employers do not have work for them. The Court decided that requiring that work be available for an employee in order to take leave is inconsistent with the FFCRA and vacated this portion of the Final Rule. Thus, employees who are on a temporary layoff (furlough) or other leave of absence may be eligible for FFCRA leave, even if the employer doesn’t have work for them.
- Are all health care providers ineligible for FFCRA leave?
The FFCRA provides that employers can exclude “health care providers” from leave benefits. The Final Rule broadly defined a “health care provider” to be “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction” and included retirement facilities, laboratory testing pharmacies or any other similar institution. Thus, an English professor, librarian, or cafeteria manager at a university with a medical school would be considered “health care providers” and therefore ineligible to receive FFCRA leave. The Court concluded that this expansive definition of health care provider is not supported by the statute and vacated it.
- Must an employee obtain the employer’s consent for intermittent leave?
The Final Rule permits “employees to take Paid Sick Leave or Expanded Family and Medical Leave intermittently only if [both] the Employer and employee agree,” but only for a subset of the qualifying conditions. The Court agreed that the conditions for which intermittent leave is entirely barred are conditions that correlate with a higher risk of viral infection. However, the Final Rule provided no rationale for the blanket requirement of employer consent for all leaves, regardless of the risk of the spread of infection, and the Court found that the Rule is entirely unreasoned and vacated it. Therefore, to the extent an employee can telework, they may be able to take leave intermittently for illness-related reasons since there is no public health risk of exposure to others in the workplace. Further, if the reason for the leave is to care for a child whose school or place of care is closed due to COVID-19, the employee can take leave intermittently without the employer’s consent.
- Can an employer require documentation before leave?
The Final Rule requires that employees submit to their employer “prior to taking FFCRA leave” certain documentation indicating “their reason for the leave, the duration of the requested leave, and when relevant the authority for the isolation or quarantine order qualifying them for leave.” However, the FFCRA’s language does not suggest such a requirement. The Court found that the Final Rule’s documentation requirement is unsupported by the FFCRA and struck it down.
What Does This Court Decision Mean for Employers Outside of the State of New York?
The DOL has not indicated whether they will challenge this ruling, and its scope is unclear. The Court did not specifically indicate that its order to vacate the portions of the Final Rule discussed above applies nationwide or is limited to New York. Nonetheless, until it becomes more certain whether the ruling has nationwide implications, we have put together a set of recommendations employers should consider.
- Consider revising policy to allow employees to submit documentation for leave after they go on the leave rather than requiring that it be submitted prior to the leave.
- Consider allowing intermittent leave for those employees requesting FFCRA leave for reasons that would not cause a spread of infection.
- If in the health care field, consider allowing employees who do not have a role in the provision of health care services to take FFCRA leave.
- Monitor DOL announcements regarding the DOL’s intent with respect to enforcement of those portions of the Final Rule which were vacated.
We will be monitoring the situation and issue additional updates when it becomes clear whether this decision impacts employers outside the state of New York. If you have any questions regarding the above recommendations; or other employment-related issues, please reach out to Phyllis Karasov, firstname.lastname@example.org.