New York Court Considers FFCRA Regulations
August 17, 2020
In a decision handed down on August 3, 2020, a federal district court judge ruled in State of New York vs. US Dept. of Labor that the DOL exceeded its authority when it promulgated rules relating to the Families First Coronavirus Response Act (FFCRA). Specifically, the court struck down rules that: 1) imposed a requirement that employers must have work for an employee in order for the employee to qualify for leave under the FFCRA; 2) broadly defined “healthcare providers” who may be exempt from the law; 3) required employers to consent to granting employees intermittent leave under the law; and 4) required employees to submit documentation before taking FFCRA leave. Although the nationwide impact of this decision is uncertain, employers should be aware of these developments and consult with counsel as to whether any modifications should be considered with respect to their FFCRA leave administration.
Under the FFCRA, employers with fewer than 500 employees are required to provide their employees up to 80 hours of paid sick leave under certain enumerated circumstances related to the COVID-19 pandemic. Those qualifying reasons include: 1) the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19; 2) the employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; 3) the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; 4) the employee is caring for an individual who is subject to a federal, state or local 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; 5) the employee is caring for a child of such employee if the school or place of care of the child has been closed, or the childcare provider of such child is unavailable, due to COVID-19 precautions; or 6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
In addition, the FFCRA expanded FMLA to provide for 10 weeks of paid FMLA leave when an employee must care for a child whose school or childcare is unavailable due to the pandemic. The DOL, charged with administering and enforcing this law, promulgated rules that interpreted key provisions of the law and imposed additional requirements that must be met before an employee can obtain this leave. The state of New York challenged these rules in court, alleging that these requirements went beyond what the law required and imposed burdens upon the state’s citizens, businesses and the state itself.
The court agreed with the state that several rules imposed burdens that went beyond the intent of the law and struck them down. First, the rules required that an employer must have work that an employee could do “but for” the fact that the pandemic prevented the employee from performing that work. The court noted that the agency did not justify why it imposed this condition upon some of the enumerated circumstances but not others, or why it felt that such a condition was necessary. Accordingly, the court struck this down.
Second, the DOL’s rules defined “healthcare providers” very broadly. Under the FFCRA, employers can exempt certain employees from obtaining the leave if they are “healthcare providers.” The agency defined this term to include not only medical doctors and nurses but also any employee who could be considered necessary for the efficient provision of healthcare (including, but not limited to, administrative staff who would not be directly responsible for diagnosing or treating patients with COVID-19). Again, the court found that the DOL’s justification for this definition, which was to include everyone necessary for the effective functioning of the healthcare system, was overbroad and did not establish a sufficient connection to the provision of healthcare services.
Third, the DOL required employers to consent to an employee’s request to take FFCRA leave intermittently before the leave can be taken in that manner. The court found no justification for this requirement imposed by the rule, since the FFCRA does not require it and no public health issue is solved by adding it.
Finally, the rules required employees to provide certain information to employers before obtaining leave under the FFCRA. The statute does not elaborate on the timing of the required documentation, other than allowing the employer, in the event that an employee seeks paid sick leave under the FFCRA, to impose reasonable notice procedures that the employee must observe after the first work day that they are absent due to a qualifying reason. In the event of the expanded FMLA, the statute merely requires that the employee notify their employer as soon as practicable. The court reasoned that imposing additional requirements conflicted with the statute and struck them down.
The extent of the impact this decision will have on the administration and enforcement of the FFCRA is difficult to ascertain. Although the court’s decision directly affects the application of the DOL’s rules in the state of New York, it is unclear whether it applies nationwide. In addition, the decision may be appealed and overturned in a higher court. However, this decision may be considered by other states if they contemplate similar legal actions, and employers should consider it when making decisions regarding their FFCRA leave policies and consult with employment law counsel.
State of New York vs. US Dept. of Labor