Labor & Employment News Alert

A New York Federal Court Strikes Certain Department of Labor (“DOL”) Regulations Regarding Paid Leave Under the FFCRA

August 7, 2020

By: Lucero Tennis Kieffer and Chad J. Sullivan

A federal district court in New York recently ruled in favor of the State of New York and struck down key provisions from the U.S. Department of Labor’s rule implementing and interpreting the Families First Coronavirus Response Act (“FFCRA”). A summary of State of New York v. U.S. Dept. of Labor’s¹ key holdings are as follows:

1. The district court struck down the DOL’s work availability requirement.

Under the DOL’s regulations, FFCRA benefits were only available to an employee if the employer had work for them. 29 C.F.R. § 826.20(a)(2), (a)(6), (a)(9) & (b)(1) (“An Employee . . . may not take [paid leave] where the Employer does not have work for the Employee.”). The district court, however, held that the DOL’s work availability requirements violated the FFCRA. The district court’s ruling is significant because it opens the door for leave requests previously not covered. FFCRA benefits may now be available to employees who have been furloughed or temporarily laid off, or whose employers had to temporary cease operations. Moreover, this decision is in stark contrast to the FMLA regulations, which hold that periods of time when the employee would not otherwise be expected to work would not count against the employee’s FMLA leave entitlement. 29 C.F.R. § 825.200(h).

2. The district court struck down the DOL’s definition of “health care provider.”

As the district court noted, “the breadth of the term ‘health care provider’ has grave consequences for employees” “because employers may elect to exclude ‘health care providers’ from leave benefits.” The district court held that the DOL’s definition of “health care provider” for purposes of the FFCRA leave provisions was “expansive” and “vastly overbroad” because it “include[d] employees whose roles bear no nexus whatsoever to the provision of healthcare services, except the identity of their employers, and who are not even arguably necessary or relevant to the healthcare system’s vitality.” Because the DOL focused “entirely on the identity of the employer . .  . rather than the skills, role, duties, or capabilities of a class of employees,” the district court vacated the DOL’s definition of “health care provider.” Therefore, this ruling potentially exposes health care employers to leave requests under the FFCRA. Until further guidance has been provided, health care employers should look to the definition of a “health care provider” as provided under FMLA regulations, as this is the only regulatory guidance presently available. 

3. The district court struck down the employer-permission requirement for intermittent leave.

The district court agreed with the DOL’s “prohibitions on intermittent leave for qualifying conditions that correspond with an increased risk of infection,” i.e., limiting intermittent leave to situations where there is no risk that the employee might spread the virus to other co-workers. 29 C.F.R. § 826.50(b). However, the district court held that this rationale fails to explain the employer-permission requirement for the remaining qualifying conditions, which do not implicate the same public-health considerations, and held that the employer-permission requirement was “entirely unreasoned.” As a result, employees are no longer required to obtain employer consent for intermittent leave when their child’s school is closed or child care is unavailable.

4. The district court invalidated the DOL’s documentation requirements to the extent they are a precondition to leave.

Under the DOL’s regulations, employees are required to submit documentation to their employer prior to taking FFCRA leave. 29 C.F.R. § 826.100. The documentation submitted by employees are required to indicate the following: the reason for leave, the duration of the leave, and when relevant, the authority for the isolation or quarantine order qualifying them for leave. Id. The district court, however, struck down any requirement that documentation must be provided as a precondition to leave, but left intact the overall documentation requirement to support the leave.

While the ruling’s impact nationwide is yet to be determined, many anticipate the DOL to provide some guidance or reaction as to the ruling and other courts to possibly follow the New York decision.  We will continue to monitor other jurisdictions and update you as to any new cases in our controlling courts.

 

¹  State of New York v. U.S. Dept. of Labor, Case 1:20-cv-03020 (S.D.N.Y.).