Q. How will the federal court decision impact business policies and practices that address FFCRA leave?
A. On August 3, 2020, the U.S. District Court for the Southern District of New York struck down four parts of the regulations issued by the U.S. Department of Labor (DOL) implementing the Families First Coronavirus Response Act (FFCRA). As a result of the decision:
- An employee may be eligible for FFCRA leave even if the employer has no work for the employee or the employee is furloughed;
- More employees at health care institutions will be eligible for FFCRA leave;
- Employees may take intermittent FFCRA leave to care for a child or, when working remotely, for any FFCRA qualifying reason, without employer permission; and
- Employees don’t need to provide supporting paperwork before taking FFCRA leave.
The court did not specifically address whether the decision applies to employers outside of the jurisdiction of the Southern District of New York. Since this is an open question, however, at least until there are further opinions on these issues, we recommend that employers outside of New York comply with the court’s decision. Likewise, while it is possible that this decision may be overturned on appeal or superseded by statute, for the foreseeable future, employers should ensure that their policies and practices addressing FFCRA leave are consistent with this decision.
The FFCRA was adopted by Congress to provide federally subsidized paid leave to certain employees unable to work due to COVID-19. In April, the DOL issued regulations pursuant to the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA), both part of the FFCRA. Due to the emergency created by the pandemic, the DOL promulgated these regulations without the typical “notice-and-comment” period required for most federal regulations. Shortly after the regulations were issued, the state of New York sued the DOL alleging that four portions of the DOL regulations unduly restrict an employee’s entitlement to paid leave.
The Work Availability Requirement
The EPSLA and EFMLEA both provide employees with paid leave if the employee is unable to work or telework due to various COVID-19 related reasons. However, New York challenged the DOL’s FFCRA regulations providing that employees are not entitled to paid leave if their employer does not have work for them. As explained by the court, this regulatory “limitation is hugely consequential for the employees and employers covered by the FFCRA, because the COVID-19 crisis has occasioned the temporary shutdown and slowdown of countless businesses nationwide, causing in turn a decrease in work immediately available for employees who otherwise remain formally employed.” For example, under the DOL’s regulations, a hotel maid would not be eligible for FFCRA leave if he otherwise qualified, but no work was available for him because of a lack of guests staying at the hotel due to the pandemic. The court concluded that the term “leave” does not require that the inability to work be caused solely by one of the qualifying conditions listed in the FFCRA, stating that the DOL’s narrow interpretation of the term was an “enormously consequential determination” that severely limits the FFCRA’s scope.
As a result of the court’s decision, if economic conditions prompted an employer to furlough or reduce an employee’s hours or because the employer must be closed due to a governmental stay-at-home order, an employee who has an FFCRA-related reason for being unable to work still may be entitled to FFCRA benefits.
Definition of “Health Care Provider”
Under the FFCRA, employers can choose to prohibit “health care providers” from taking paid leave benefits offered by the statute. Under the DOL’s regulations, the term “health care provider” was broad enough to exclude nearly every individual (from janitor to surgeon) working at a health care-related business from taking FFCRA leave. Indeed, even the DOL conceded that, under its broad rule, an “English professor, librarian, or cafeteria manager at a university with a medical school could be classified as excluded “health care providers.” The court struck down this interpretation as overbroad, concluding that the “health care provider” exclusion was meant to cover only those actually providing health-care services during the pandemic.
What does this mean for employers? Employers in the health care space should carefully examine each employee’s job duties to ensure employees are actually providing health care services (and therefore not automatically entitled to FFCRA leave) before denying FFCRA leave.
Under the DOL’s regulations, an employee is permitted to take FFCRA leave intermittently to care for a child whose school or place of care is closed due to COVID-19, or, when working remotely, for any FFCRA-qualifying reason only if the employer and employee agree. The court agreed with the DOL’s rationale that a person reporting to a physical worksite using FFCRA leave to care for a son or daughter could take intermittent leave because they are unlikely to present an increased risk of infection to others in the workplace (unlike a person using FFCRA leave because of their own COVID-19 diagnosis). However, the court concluded that the DOL failed to justify why it was necessary for an employee to obtain employer consent when taking intermittent leave to care for children or when working remotely. It struck down the DOL rule mandating employer permission in these circumstances as overbroad.
As a result of this opinion, employer consent is no longer required for an employee to take FFCRA leave intermittently to care for a son or daughter whose school or place of care is closed due to COVID-19 or, when working remotely, for any FFCRA-qualifying reason.
Finally, the DOL’s regulations require that employees submit supporting information to their employer before taking FFCRA leave, despite the fact that portions of the EFMLEA and EPSLA provide that employees are only required to provide notice as is practicable or reasonable. The court concluded that the DOL’s documentation requirements cannot stand.
As a result of the opinion, employers can still require employees to provide information and documentation supporting their need for FFCRA leave, but employers cannot precondition leave on those documents being provided in advance of leave.
The FFCRA continues to present employers with unique legal challenges. As the COVID-19 pandemic continues to rage throughout the country, please consult with a Troutman Pepper Employment Law attorney before making a decision about an employee’s entitlement to FFCRA leave. Please visit the Troutman Pepper COVID-19 Resource Center for COVID-19-related news and developments.