Paid Leave and Coronavirus — Part XV: New York Federal Judge Vacates Parts of DOL Families First Coronavirus Response Act (“FFCRA”) Final Regulations

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Seyfarth Synopsis: The Families First Coronavirus Response Act (“FFCRA” or the “Act”) went into effect on April 1, 2020. That same day, the Department of Labor (“DOL”) finalized “temporary” regulations, which went into effect immediately and described the obligations of employers, and the rights of employees, under the Act’s paid sick time (“PST”) and expanded family medical leave, i.e., paid family medical leave (“EFML”) mandates.¹ 

On August 3, 2020, District Judge J. Paul Oetken of the Southern District of New York (“SDNY”) issued a decision vacating certain aspects of the DOL’s regulations on the FFCRA.² The decision comes as part of a lawsuit brought against the DOL by the State of New York. In issuing its decision, the court responded to competing motions for summary judgment, and generally aligned with the State’s position on the disputed topics. The substantive effect of the decision, as summarized by Judge Oetken, is as follows:

“The following portions, and only the following portions, of the Final Rule are therefore vacated: the work-availability requirement; the definition of “health care provider”; the requirement that an employee secure employer consent for intermittent leave; and the temporal aspect of the documentation requirement, that is, the requirement that the documentation be provided before taking leave. The remainder of the Final Rule, including the outright ban on intermittent leave for certain qualifying reasons and the substance of the documentation requirement, as distinguished from its temporal aspect, stand.”

Below are some nonexclusive highlights of the August 3 decision.

Qualifying Absences and Work-Availability Requirement.

As we have previously reported, employees can use PST under the Act when the employee is unable to work (or telework) due to a need for leave because: (1) they are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) The employee is caring for an individual [note - need not be a family member] who is subject to an order as described in reason for use (1) or has been advised as described in reason for use (2) (as described above); (5) The employee is caring for a child of such employee if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID-19 precautions; and (6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

By comparison, EFML under the Act can be used only where the employee is unable to work (or telework) due to a need for leave to care for the son or daughter of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.

The DOL regulations contain a number of provisions regarding the above qualifying absences.³ The State of New York took issue with one particular aspect of these provisions, namely language stating that paid leave for certain reasons under the Act is not available to employees where the employer does not have work for the employee. The DOL regulations’ “work-availability requirement,” as it is referred to by the court, specifically applies to PST qualifying absences (1), (4) and (5) above, as well as the EFML qualifying absence.

In deciding to vacate the “work-availability requirement” from the regulations, the court determined that the DOL’s interpretation of certain ambiguous language in the FFCRA’s qualifying absences, namely the prerequisite “…unable to work (or telework) due to a need for leave because…,”⁴ was not reasonable under Chevron.⁵ The court justified its decision on grounds that (a) the DOL regulations lack any explanation as to why the “work-availability requirement” only applies to three of the six PST qualifying absences,⁶ and (b) the DOL’s explanation for the “work-availability requirement” —“that [it] is justified ‘because the employee would be unable to work even if he or she’ did not have a qualifying condition” — is insufficient given that the requirement “is an enormously consequential determination that may considerably narrow the statute’s potential scope.”

Intermittent Leave.

In general, DOL regulations permit intermittent leave only in certain situations and only upon agreement with the employer in those situations. We further summarize these provisions, which are generally consistent with the intermittent leave discussion in the DOL FFCRA FAQs, here.

In its August 3 decision, the court did not take issue with the language in the regulations limiting intermittent leave to only certain qualifying absences as it “advances Congress’s public-health objectives by preventing employees who may be infected or contagious from returning intermittently to a worksite where they could transmit the virus." As a result, the court found that the regulation’s language “survives Chevron review insofar as it bans intermittent leave based on qualifying conditions that implicate an employee’s risk of viral transmission.”

However, the intermittent leave provisions in the regulations were not fully shielded from the August 3 decision. The court explained that the DOL regulations “fail[ ] to explain why employer consent is required for the remaining qualifying conditions, which concededly do not implicate the same public-health considerations.” (emphasis in original). The court therefore concluded that “[i]nsofar as it requires employer consent for intermittent leave, then, the Rule is entirely unreasoned and fails at Chevron step two.”

Documentation.

The DOL regulations contain several provisions regarding appropriate documentation when an employee seeks to use PST or EFML. Specifically, the regulations note that the employee must provide their employer documentation containing the following information prior to taking PST or EFML: (1) Employee’s name; (2) Date(s) for which leave is requested; (3) Qualifying reason for the leave; and (4) Oral or written statement that the employee is unable to work because of the qualified reason for leave.

While the FFCRA is silent on any specific documentation requirement, it notes the following with respect to employee notice — “After the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.” (emphasis added). The court vacated the part of the regulation’s documentation provision stating that employees must provide the required documentation before their PST or EFML absence, finding that this requirement is inconsistent with the timing set forth in FFCRA notice provisions. The court emphasized that the substantive aspects of the regulations documentation requirements, as opposed to the “temporal aspect” described above, remain in effect. 

Meaning of Health Care Provider.

The DOL regulations contain a definition and examples of the term “health care provider” for purposes of a “health care provider” who may be excluded by their employer from receiving PST or EFML under the FFCRA. The relevant provisions in the DOL regulations are generally consistent with guidance on the meaning of these terms from the DOL’s FFCRA FAQs, which we summarized here. A separate client alert also examined aspects of the of the regulation’s use of the term “health care provider.”

The August 3 decision took issue with the regulations' definition of “health care provider”⁷ as compared to that under the FFCRA,⁸ specifically by deeming the former overbroad as compared to the original statute. To emphasize the expansive nature of the regulations, the court notes that the DOL “concedes that an English professor, librarian, or cafeteria manager at a university with a medical school would all be ‘health care providers’ under the Rule.” Ultimately, and despite arguments from the DOL that maintaining a broad definition of “health care provider” is necessary to “maintaining a functioning healthcare system during the pandemic,” the court found that “the Final Rule’s definition is vastly overbroad…in that it includes employees whose roles bear no nexus whatsoever to the provision of healthcare services, except the identity of their employers, and who are not even arguably necessary or relevant to the healthcare system’s vitality.” (emphasis in original).

Next Steps.

While the case and decision come from the State of New York, we will be monitoring whether other states bring similar challenges to the FFCRA regulations. FFCRA-covered employers should take stock of the SDNY’s August 3 decision and its effect on their administration of paid leave under the Act, particularly in terms of (a) determining when employees have a qualifying need for paid leave, (b) the scope of the “health care provider” exemption, if applicable, (c) handling intermittent leave requests, and (d) timing for requiring employees to submit documentation. In addition, employers should consider taking the following steps:

• Monitor potential legal challenges to or appeals of the SDNY’s August 3 decision.
• Monitor for DOL announcements regarding possible updates to it regulations and FAQs on the FFCRA.
• Review existing workplace policies relating to a wide host of issues, including travel, work from home, and other policies as well as existing leave policies, and assess the potential effect of the FFCRA on those policies. If necessary, implement additional policies specifically tailored to FFCRA compliance.
• Consult Seyfarth’s COVID-19 Resource Center for updated information regarding the rapidly evolving COVID-19 situation and its impact on the workplace.

With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with the FFCRA and paid leave requirements generally. To stay up-to-date on COVID-19 developments, click here to sign up for our daily digest. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to sickleave@seyfarth.com.

^[1] As a reminder, the Act’s paid leave mandates sunset on December 31, 2020.

^[2] New York v. U.S. Dept. of Labor, Case No. 20-cv-3020 (S.D.N.Y. Aug. 3, 2020).

^[3] For more information on provisions in the DOL regulations involving PST and EFML qualifying absences, see our prior alert.

^[4] This FFCRA language pertains to PST qualifying absences. EFML qualifying absence language similarly states “unable to work (or telework) due to a need for leave to care for…”

^[5] Chevron U.S.A. Inc., v. Natural Resources Defense Council, 467 U.S. 837 (1984).

^[6] The court took specific issue with this “anomaly” in the DOL regulations because “the six qualifying conditions share a single statutory umbrella provision containing the causal language…”

^[7] The August 3 decision states the following  -- “The FMLA, which supplies the relevant statutory definition for both provisions of the FFCRA at issue, defines a ‘health care provider’ as: ‘(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.’”

^[8] By comparison, the DOL regulations define “health care provider” as (A) “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,” and (B) “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.”