FFCRA Update: Court Strikes Four Employer-Friendly Rules

By Christopher Morehead

On August 3, 2020, a federal court in New York struck four key Department of Labor (DOL) employer-friendly rules implementing the Families Firsts Coronavirus Response Act (FFCRA). Pursuant to the court’s ruling, more employees will be able to take leave in circumstances the DOL previously determined were not leave-eligible when the regulations went into effect on April 1, 2020.

At present, it is unclear if the reasoning of the case will be applied to employers outside of New York, whether the ruling will be reversed on appeal, or whether the DOL will choose to change its rules to align with the court’s ruling (and thus extend the effect of the ruling to all employers). In any event, all employers subject to the FFCRA (employers with less than 500 employees) should take note of this decision because, even if the ruling itself is limited to New York employers, employees in other jurisdictions may challenge FFCRA leave denials based, at least in part, on this decision.

Ruling 1: Court Strikes Work Availability Requirement

As we previously discussed, the DOL’s regulations stated that, in order for employees to be eligible for Emergency Family Medical Leave (EFML) and three qualifying reasons for Emergency Paid Sick Leave (EPSL), the employer had to have work available for the employee in the first instance. In other words, if the employer did not have work available – due, for example, to being shut down by a shelter-in-place order – then the employee would not be entitled to leave. The DOL’s rationale was that the employee would not have had any work to perform regardless of their qualifying reason for leave, and therefore should not be entitled to paid benefits.

The court concluded that the work-availability requirement was contrary to the FFCRA’s language and that the DOL’s reasoning for the requirement was insufficient. Accordingly, it struck the work-availability requirement.

The Takeaway: Employers should be particularly wary of declining FFCRA leave pursuant to the work-availability requirement. If your operations are shutdown, and your employees are not able to telework and present a qualifying reason for leave under the FFCRA, such employees may nonetheless be entitled to leave.

Ruling 2: Employers Cannot Require Employees to Submit Documentation Prior to Leave

The DOL’s regulations state that employees must provide employers with certain documentation, including the reason for and duration of, supporting their requested FFCRA leave prior to the employee taking leave. The court struck this provision down, finding the rules inconsistent with the FFCRA’s purpose and notice provisions.

The Takeaway: Employers should consider eliminating any policy or leave form language requiring employees to submit documentation as a prerequisite to taking FFCRA leave.

Ruling 3: Employees Don’t Need Employer Consent to Take Intermittent Leave

The DOL’s regulations state that employees may take intermittent EMFL and EPSL, provided that the employer agrees to such an arrangement. The court struck this rule, finding it unreasoned and unsupported by the language of the FFCRA.

The Takeaway: Employers should strongly reconsider denying an employee’s request for intermittent EPSL or EFML. This will be particularly important with the school year getting underway and parents needing to stay home due to a school or childcare closures. Note, though, that the court did not invalidate DOL’s rule that employees who work at a physical location (that is, employees who are not teleworking), and who are taking EPSL due to their own COVID-19 symptoms, diagnosis, or exposure, may not take intermittent leave, as doing so would risk infecting coworkers. Such employees may not take intermittent leave under the FFCRA.

Ruling 4: The Healthcare Provider Exemption is Overbroad

The DOL’s regulations created a broad exemption for healthcare providers, excluding anyone employed by a swath of entities in the healthcare industry. The court held that the exemption was far too broad, finding that the exclusion was based simply on the identity of the employer, as opposed to their respective jobs and skills. The court found that the broad rule unreasonably prevents employees who have nothing to do with the provision of medical services (e.g., a cafeteria manager at a university with a medical school) from receiving benefits under the FFCRA.

Notably, the court did not remove the FFCRA’s incorporation of the FMLA definition of a healthcare provider: “(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.”

The Takeaway: It is now unclear who is and isn’t including the healthcare provider exemption under the FFCRA. At minimum, employers who previously relied on the exemption can continue to rely on the FMLA definition of a healthcare provider. But such employers should strongly reconsider denying leave for employees outside of that definition, especially those who have zero involvement in the provision of medical services.

This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.

Posted in
Filed under