Labor & Employment Law Alert

On August 3, 2020, the Southern District of New York issued an Opinion in State of New York v. U.S. Department of Labor, et al., No. 1:20-cv-03020 (S.D.N.Y. Aug. 3, 2020) striking down several key components of the Emergency Paid Sick Leave Act (“emergency PSL”) and the Emergency Family and Medical Leave Expansion Act (“expanded FMLA”) from the Families First Coronavirus Response Act (FFCRA), which generally applies to businesses with 500 or fewer employees.

Essentially, among other things, the expanded FMLA entitles employees up to 12-weeks of paid leave1 where they are unable to work because they must care for a dependent child due to COVID-19.  FFCRA §§ 3102(a)(2); 3102(b).  The emergency PSL requires covered employers to provide up to 80 hours of paid sick leave2 dealing with a variety of COVID-19 related-issues including, where the employee is subject to a governmental quarantine order; has been advised by a doctor to self-quarantine; experiencing COVID-19 symptoms and seeking diagnosis; caring for someone subject to quarantine or isolation order; caring for a child whose place of school or care or childcare provider is unavailable because of COVID-19; or finally, experiencing a substantially similar condition specified by the Secretary of Health.

1.The Work Availability Requirement

First, the State of New York challenged the “work-availability requirement”.  As stated above, the emergency PSL provides paid leave to employees who are “unable to work (or telework) due to a need for leave because” of any of six COVID-19-related criteria. FFCRA § 5102(a).  Similarly, the emergency FMLA also only applies to employees “unable to work (or telework) due to a need for leave to care for . . . [a child] due to a public health  emergency.” FFCRA § 101(a)(2)(A).  The Final Rule implementing the expanded FMLA and emergency PSL, excludes eligibility for leave to employees whose employers “do[] not have work” for them. See Final Rule at 19,349–50 (§§ 826.20(a)(2), (6), (9), (b)(1)).  In reaching its determination, the Court notes that the express language of the Final Rule applies the work-availability requirement to only three of the six qualifying conditions: (1) subject to quarantine or isolation order; (4) care of an individual subject to a quarantine or isolation order and (5) care of child whose school or place of care is unavailable.  Aside from extensive discussion as to why the work-requirement language was included for some leave reasons and not others, the Court’s main focus was whether the USDOL had the authority to include the work availability in the Final Rule.

The State of New York argued that the statute’s language focuses on the employee’s need for leave, not whether the employer had work available for them.  The USDOL on the other hand argued that since the statute provides paid leave to employees who are “unable to work (or telework)”  due to  a need for leave, a but-for causal connection exists presupposing that work must be available and the employee unable to perform work in order to be eligible.  Ultimately, the Court agreed with the State of New York, holding that USDOL’s interpretation exceeded its rulemaking authority.

The Court’s decision striking down the work availability requirement could affect employees who are currently furloughed or had been previously laid off prior to requesting or exhausting FFCRA.  These employees could potentially claim a right to leave regardless of current employment status.  It could also impact unemployment benefits. 

2.The Definition of “Health Care Provider”

The Court also struck down the definition of “health care provider” as overbroad.  The enacted rule provides that “an employee who is a health care provider or emergency responder” may be denied expanded FMLA or emergency PSL.  See FFCRA §§ 3105; 5102(a).  The Final Rule’s definition of “health care provider” for the purposes of the FFCRA leave includes:

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.

Final Rule at 19,351 (§ 826.25).  Under the above definition, the USDOL admits that an English professor, librarian, or cafeteria worker at a university with a medical school would all be “health care providers” under the Final Rule. But the USDOL contends that this broad definition is consistent with the statute’s purpose of exempting individuals who are essential to maintaining a healthcare system during the COVID-19 pandemic.

Ultimately, the Court disagreed and struck down this definition as overbroad.  The Court explained that even assuming that the USDOL is right that individuals not providing direct patient care are still “essential” to maintaining a healthcare system, the above definition was too overbroad and was therefore, vacated.

3.Intermittent Leave

The FFCRA does not include any provisions regarding intermittent leave; however, the USDOL in its Final Rule provides that employers must consent to intermittent leave and that it can only be used in cases where the leave is needed to care for a child whose school or place of care is closed or unavailable due to COVID-19.  To provide otherwise, as argued by the USDOL, would permit an employee with COVID-19 symptoms or caring for someone with COVID-19 symptoms to potentially spread the virus to others in the workforce.  The USDOL clarified that so long as the employee is working remotely, such a risk is not posed and the employee could use the leave intermittently if the employer consents.  The Court did ultimately agree that intermittent leave should be restricted where there is a risk of infection to others; however, the Court held that there is no basis to permit employers to deny intermittent leave for qualifying reasons that do not “correlate with a higher risk of viral infection.”

4.Documentation Supporting Leave

The Final Rules which require employees to provide documentation “prior to taking” expanded FMLA or emergency PSL under the FFCRA was stricken.  Employers, however, may continue to require reasonable documentation but it cannot be a precondition to leave.  The Court explained that the temporal aspect of the Final Rule contradicts two key provisions from the FFCRA, exemption from advance notice for unforeseeable needs for leave and a provision permitting employees to receive one day of emergency PSL before being required to give notice for the leave.

The Bottom Line

The Opinion creates more questions than it answers and employers are now almost back to square one in trying to comply with the above leave provisions of the FFCRA.  For example, the decision is currently only binding in the Southern District of New York and it is not clear whether it extends beyond into other jurisdictions or nationwide.  The USDOL may choose to revise the affected rules consistent with this Opinion or it could seek a stay of the Opinion and file an appeal.  Regardless, we recommend that all employers take a cautious approach to all requests for leave under the FFCRA at least until more guidance is available.

1 The first ten days for which an employee of a covered employer takes emergency FMLA may be unpaid, but after ten days, employees are entitled to job-protected emergency family leave at two-thirds of their regular wages for another ten weeks.

See FFCRA § 3102(b) (adding FMLA § 110(b)(2)).  Employees may use emergency PSL during the first two weeks of emergency FMLA.

2 The emergency Paid Sick Leave entitles full-time employees to 80 hours — or roughly two weeks — of job-protected paid sick leave at various amounts depending upon the qualifying reason for leave. Id. §§ 5102(b)(2)(A), 5104(1).


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