Due to the recent COVID-19 pandemic, Congress passed the Families First Coronavirus Response Act (“FFCRA”) which provided employees federally subsidized paid leave if they were unable to work due to COVID-19. Congress tasked the Department of Labor with administrating the Act and the Department of Labor issued a “Final Rule” to implement the Act’s provisions. Shortly thereafter the State of New York brought suit to challenge the Final Rule, alleging that several portions of the Final Rule exceeded the Department of Labor’s authority.
The FFCRA requires employers to offer sick leave and emergency family leave to employees who are unable to work because of COVID-19. Congress subsidized the cost of this paid leave by granting the employers a corresponding tax credit which offset the costs of the leave. The State of New York challenged four aspects of the Final Rule arguing that the provisions unduly restricted paid leave. Ultimately, the Court struck the four provisions discussed below from the Final Rule, but chose not to invalidate the Final Rule as a whole leaving the rest of the Final Rule intact.
Federal Court Decision
New York first challenged the work-availability requirement which granted paid leave to employees who were “unable to work (or telework) due to a need for leave” due to any of six COVID-19 criteria. Additionally, paid leave was to be given to employees “unable to work (or telework) due to a need for leave to care for … [a child] due to a public health emergency.” However, in the Department of Labor’s Final Rule, employers could deny employees paid leave if they did not have work for the employees regardless of their reason for the paid leave. The Court, while noting several other deficiencies with the provision, ultimately invalidated the provision on the grounds that the reason the Department of Labor provided for the work availability requirement was patently deficient. The Court itself came to the conclusion that numerous businesses across the nation have a work shortage and that should not affect whether an employee requires the need for leave due to COVID-19.
Next, New York challenged the provision of the Act which permitted employers to exclude “health care providers” or “emergency responders” from leave benefits. New York challenged this provision on the grounds that the definition for “health care providers” provided in the Final Rule was overly broad. As noted by the Court, under the definition provided by the Final Rule, an English professor, librarian, or cafeteria manager at a university with a medical school would all be considered “health care providers.” Although the FFCRA required that the Department of Labor identify which employees the FFCRA would apply to, it still required that the employee must be capable of furnishing healthcare services for the exception to apply. The Court found that by defining the term “health care providers” so that it encompassed any individual who was remotely involved in the healthcare business, the Final Rule was in direct contradiction with the statute.
Third, New York argued that the Final Rule’s prohibition on intermittent leave exceeded the Department of Labor’s authority. The Final Rule permitted “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. The Court, in analyzing the Department of Labor’s explanation for the interpretation found that the Department of Labor failed to explain why the employer’s consent was required. Finding no valid explanation, the Court struck down the interpretation. However, the interpretation survived to the extent that it banned intermittent leave for employees that are at risk of viral transmission.
Last, New York argued that the Final Rule’s documentation requirements were inconsistent with the statute. The Final Rule required that prior to taking FFCRA leave, employees must submit documentation to their employer indicating their reason for leave, the duration of the requested leave, and, when relevant, the authority for the isolation or quarantine order qualifying them for leave. As noted by the Court, the relevant notice provisions in the FFCRA only required the employee to provide reasonable notice as was practicable. To the extent that the Final Rule required more stringent procedures, the Court found it improper.
This ruling will unfortunately create more uncertainty in an already uncertain area. At this point, it is unclear whether the Court’s ruling will impact employers outside the Southern District of New York. As such, employers within the Southern District of New York may have differing obligations under the FFCRA than employers in other jurisdictions. It is reasonable to assume that this type of case will spread to other States and jurisdictions as well. Those in other states should closely monitor similar challenges brought in their state. Employers need to be prepared for such new obligations and potentially increased claims by employees.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at firstname.lastname@example.org. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.