On August 3, 2020, a judge in the Southern District of New York overturned several provisions of the US Department of Labor’s Final Rule that interprets the Families First Coronavirus Response Act (the FFCRA). These provisions had determined how companies decide whether and to what extent employees are eligible for paid sick and family leave under the FFCRA. The court found that the DOL failed to sufficiently explain the reasons for certain parts of the Final Rule and found other portions overbroad and inconsistent with other sections of the FFCRA.
In the decision, State of New York v. United States DOL, 20 Civ. 3020 (JPO)(S.D.N.Y.), the Court struck down the following provisions of the Final Rule:
The Final Rule provided that an employer is not required to grant leave to employees if the employer does not have work for them to perform, based on certain COVID-19 related reasons.
The Court found that the Final Rule drastically narrowed the scope of the FFCRA’s provision of leave without giving sufficient explanation.
- Definition of “Health Care Provider”
The Final Rule allowed employers to exclude “health care providers” from the leave requirements of the FFRCA and defined “health care providers” extremely broadly. In addition to covering all employees at doctor’s offices, hospitals and clinics, the Final Rule included certain educational institutions and medical schools, nursing home and home health care providers, laboratory or medical testing facilities, and pharmacies—as well as any employee whose employer contracted with any such companies and any employee of any company that provides medical services or products or is involved in any way with making COVID-19 related medical equipment, tests, vaccines, drugs, diagnostics or other treatments.
The Court noted that this definition would include an English professor, librarian, or cafeteria worker at university with a medical school.
The Final Rule only allowed employees to take intermittent leave where the employer agreed to intermittent leave and only for a certain subset of conditions that qualify under the FFCRA.
Specifically, the court objected to the provision that required the employer to consent to an employee taking intermittent leave, or leave taken over separate periods of time instead of all in one continuous chunk.
- Documentation Requirement
The Final Rule required employees to submit certain documentation prior to taking leave including the reason for leave, the duration of leave, and the authority of the relevant isolation or quarantine order.
The Court found this requirement inconsistent with the FFCRA’s provision stating that employees must provide advance notice “as is practicable” in situations where the need for leave is foreseeable. In other words, the FFCRA recognized that in some instances employees may not have sufficient notice or time to provide this documentation.
So what does this mean for employees who need paid sick or family leave for reasons related to COVID-19?
Well, that’s not clear. The decision found that the other provisions of the Final Rule not discussed in the order may proceed. However, the decision did not specify whether the 4 provisions above are overturned only in New York state—since this case was brought by the State of New York—or throughout the country.
The DOL could appeal the decision to the Second Circuit Court of Appeals and potentially to the Supreme Court, or it could issue a new Final Rule that addresses the Court’s concerns. You can be sure that we will continue to monitor the implementation of the FFCRA in New York and across the country.
If you have any questions about the way that your employer is handling COVID-19 leave or any other issues relating to COVID-19 in the workplace, do not hesitate to contact us by telephone at (212) 385-9700 or through the form on this website for a free consultation.