On August 3, 2020, in an action brought by the State of New York (New York) against the U.S. Department of Labor (DOL), a court in the Southern District of New York granted summary judgment to New York and vacated four features of the DOL’s April 1, 2020 Final Rule implementing the Families First Coronavirus Response Act (FFCRA).

The ruling strikes down the DOL’s (1) requirement that an employee is not eligible for FFCRA leave unless the employer has work for the employee; (2) definition of “health care provider”; (3) prohibition on intermittent leave without employer consent when needed for school or childcare closures; and (4) requirement that employees submit documentation “prior to taking” FFCRA leave.

The impact of this decision is unclear. If the decision stands (the DOL may appeal and seek a stay of the ruling), it would have the effect of substantially enlarging FFCRA leave entitlements beyond what the DOL contemplated in its Final Rule. It could also encourage employees who were denied leave previously to seek those benefits retroactively or prospectively, including by making claims.  Further, unless and until the DOL issues replacement regulations, employers will have to navigate the regulatory gaps created by the now-invalidated rules.

We describe each vacated provision in turn.

The work-availability requirement

The FFCRA grants paid leave to employees who are “unable to work (or telework) due to a need for leave” because of certain qualifying conditions. In its Final Rule, the DOL interpreted the phrase “due to” as requiring a causal connection between the need for leave and the qualifying condition, and determined that FFCRA leave was not available for employees whose employers “do[ ] not have work” for them.

The court vacated this exception. The upshot is that employees who seek leave for a qualifying reason may be entitled to it even if their employer “does not have work” for them. The consequences could be far-reaching. For instance, employees who were furloughed or laid off prior to exhausting FFCRA leave may argue entitlement to those benefits regardless of the employment suspension or loss. The decision also could impact entitlement to unemployment benefits.

The definition of “health care provider”

The FFCRA permits an employer of “an employee who is a health care provider . . . to exclude such employee” from expanded FMLA benefits. The statutory definition of “health care provider” includes doctors and “any other person determined by the [DOL] to be capable of providing health care services.”

In the Final Rule, the DOL defined the term “health care provider” broadly to include:

anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions,

as well as

any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility, [and] anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.

The court vacated the DOL’s definition of “health care provider,” holding that it impermissibly expanded that definition beyond the confines of the statute. The DOL may attempt to redefine the term, but there is now renewed ambiguity over who constitutes a “health care provider” to whom an employer may deny FFCRA leave benefits. Individuals who were previously denied FFCRA benefits under the “health care provider” exception might now seek FFCRA leave retroactively and/or prospectively.

Intermittent leave

The Final Rule permits “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 for leave. The court accepted—and embraced—the DOL’s position that this restriction forbids intermittent leave when it is sought for a single qualifying reason, but does not restrict an employee from taking additional leave for a different qualifying reason. For example, an employee cannot take intermittent leave to seek a COVID-19 diagnosis, but could take a second chunk of leave if she later needs leave to care for her child due to school closure.

The court did, however, vacate the Final Rule on intermittent leave to the extent that it prohibits intermittent leave without the employer’s consent for qualifying reasons that do not “correlate with a higher risk of viral infection.” In other words, although the DOL had a reasonable basis to allow employers to forbid employees from coming in and out of the workplace while they are being checked for, have been exposed to, or have been diagnosed with COVID-19 (i.e., to prevent that employee from spreading the virus), the court found that the DOL had no justification for requiring employer consent for intermittent leave to care for a child whose school or childcare is closed. The takeaway is that, if the ruling is not stayed or reversed on appeal, employers cannot prohibit employees from taking intermittent leave when they wish to do so for childcare reasons unrelated to any confirmed or suspected COVID-19 in the employee’s household.

Documentation requirements

The Final Rule required employees to submit certain supporting documentation to their employer “prior to taking [FFCRA] leave.” The court vacated this requirement, holding that it conflicted with two statutory provisions: (i) an exemption from advanced notice when the need for leave is unforeseeable, and (ii) a provision allowing employees to collect a day of paid sick leave before being required to give notice of the need for FFCRA leave.

While the court upheld the substance of the documentation requirements in the Final Rule, it eliminated the temporal aspect. Thus, employers cannot require documentation as a condition precedent to FFCRA leave, at least where one of the statutory exceptions applies.

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Employers will need to carefully monitor developments relating to this ruling, including whether it is stayed or reversed on appeal, or whether DOL issues new regulations or guidance in light of it.