Employment Law Alerts

August 18th, 2020

New York Court Strikes Key Provisions of the US DOL’s Rule Regarding FFCRA Paid Sick and Expanded FMLA Leave

On August 3, 2020, Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York struck down four provisions of the U.S. Department of Labor (“DOL”) regulations (the “Final Rule”) implementing elements of the Families First Coronavirus Relief Act (“FFCRA”) (the “Decision”). With five months left before the FFCRA is set to expire on December 31,2020, here is what you need to know:

Background. The Families First Coronavirus Response Act went into effect on April 1, 2020 as part of congressional efforts to provide COVID-19-related relief to American workers. The FFCRA includes provisions requiring employers to provide eligible employees with up to two weeks of paid COVID-19-related sick leave (the Emergency Paid Sick Leave Act or “EPSLA”)  and up to 12 weeks of paid COVID-19-related family leave (the Emergency Family and Medical Leave Expansion Act  or “EFMLA”)). Our earlier alert with respect to the contents of the Final Rule can be found here.

The Decision. Subsequent to implementation of the Final Rule, the State of New York commenced a legal challenge to several parts of the FFCRA on the grounds that they “exceed[ed]” the DOL’s authority.  While the Decision is likely controlling authority for employers located in the S.D.N.Y. (i.e., counties of New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess and Sullivan), other employers should take note as the Decision may be cited as persuasive authority outside of the S.D.N.Y. and may be adopted by other courts as well.

Here are the four aspects of the Final Rule that have been invalidated by the Decision:

1. The Work-Availability Requirement

Under the FFCRA, employees who are unable to work or telework, based on one of the six  designated COVID-19 sick or child care reasons, are eligible to receive paid leave. However, the Final Rule permitted employers to exclude employees from these provisions under some of the EFMLA and EPSLA qualifying reasons when employers “do not have work” for them. This work-availability exclusion was particularly important for employers who furloughed workers or who were exempted from having to provide paid leave benefits while their businesses were shuttered. Judge Oetken struck this provision as “patently deficient.”  While the Decision did not specifically rule that employees previously subject to the work-availability exclusion are now entitled to FFCRA leave, pending further appeals or a stay of the Decision, employers should now exercise caution in relying on the exclusion to deny leave.

2. Definition of “Health Care Provider”

Under both the EPSLA and EFMLA, an employer of an employee “who is a health care provider or emergency responder” may elect to exclude such employees from leave benefits. The FFCRA defined “health care provider” as “anyone employed at any [of certain listed medical care institutions]” and “any individual employed by an entity that contracts with any of [such] institutions.” Judge Oetken ruled that this definition was “vastly overbroad” and could include non-health care-related workers (i.e. janitorial staff, cafeteria managers) who are employed at a medical institution. 

3. Intermittent Leave and Employer Consent

The Final Rule allows employees to “take [EPSLA and EFMLA leave] intermittently only if the Employer and Employee agree,” and so long as doing so does not pose a public health risk. Judge Oetken found that while the provisions allowing employer consent for intermittent leave were sound where they correlated to a higher risk of viral infection (i.e., when employees were subject to a quarantine order or experiencing COVID-19 symptoms), they were not sound when conditioned on employer consent for reasons such as child care leave. Judge Oetken thus voided this portion of the Final Rule. 

4. Documentation Requirements

Finally, the Decision addressed employee documentation requirements under the FFCRA. The FFCRA provides that an employee seeking to take leave under either the EPSLA or EFMLA must submit documentation to their employer prior to taking leave that indicates (i) the reason for leave, (ii) duration of requested leave, and (iii) where relevant, “the authority for the isolation or quarantine order qualifying them for leave.” Judge Oetken upheld the requirement regarding the contents of the documentation, but struck down that portion of the provision that required employees to submit documentation as a precondition to taking leave. Notably, this ruling was only with respect to timing; the requirement that employees provide documentation to support the leave was left intact, and employers should continue to require such documentation as necessary among other reasons to support any application for payroll tax credits. 

Next Steps

We will continue to monitor potential challenges to or appeals of the Decision, as well as DOL announcements regarding possible updates to the Final Rule and the FAQs on the FFCRA. The DOL may decline to take further action, given that (absent further congressional action), the FFCRA will expire on December 31, 2020. In the meantime, employers in New York should review their policies to ensure compliance with the existing Decision. If you have questions about your policies compliance, contact Wendy Stryker at (212) 705 4838 or wstryker@fkks.com, or any other member of the Frankfurt Kurnit Employment Compliance, Training & Litigation Group.