A federal judge in New York struck down portions of the U.S. Department of Labor’s Rule on the Families First Coronavirus Response Act (“FFCRA”), leaving substantive changes to the legal landscape.
The DOL could appeal the decision and if so, it is possible that implementation will be stayed. However, since this has not yet occurred, employers should proceed on the assumption that the provisions that were struck down are no longer operative law. Employers should review these changes immediately and determine how it affects their coronavirus leave policies. In cases where FFCRA leave (either Emergency Paid Sick Leave or the FMLA expansion) was denied, employers should consult with counsel as to whether and how to revisit those decisions.
Intermittent Leave Availability
The Court also clarified that employer consent would not be required for the use of intermittent leave. The Court agreed that an employee could not use intermittent leave where this would not be appropriate for public health reasons. For example, an employee is not free to decide to come into work intermittently while subject to a quarantine order. However, the employee can choose to use leave intermittently due to the closure of its childcare provider. This is significant, as employers are now required to allow employees to dictate their schedule for using leave due to such a closure, which would include accommodating cohorting schedules dictated by the child’s school. This could lead to major staffing shortages, particularly if a school closes leaving many of an employer’s staff without childcare.
Work-Availability Requirement
The DOL had taken the position that its Rule should be interpreted to mean that an employee who would otherwise qualify for FFCRA leave, but whose employer had no work for the employee to perform either in-person or remotely, would not qualify for paid leave under the law. In other words, a hairdresser experiencing COVID-19 symptoms and awaiting a diagnosis would be ineligible for leave under the DOL’s interpretation because the workplace was closed and there was no work that could be performed remotely. The Court determined that this was an incorrect interpretation of the DOL’s Rule and that the work-availability requirement would only apply to reasons 1, 2, and 5. These reasons are, respectively, a government-imposed quarantine, a quarantine advised by a health care provider, and unavailability of childcare. As a result of the Court’s decision, if a business is closed or there is no work available for the employee, the employee would still be eligible to take paid leave under FFCRA for reasons 3, 4, and 6. These reasons are, respectively, an employee experiencing symptoms of COVID-19 and seeking a diagnosis, an employee caring for someone under quarantine advice or order, and someone experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services (which has not occurred, to date). In this case, it was not the language of the Rule that was struck down, but rather the DOL’s interpretation of the reach of the work-availability requirement as stated in the Rule.
Documentation Requirements
The Court removed any requirement to provide documentation of the need for leave prior to taking the leave. However, the documentation requirements remain in place in terms of what employees must provide to be eligible for leave.
Definition of Health Care Provider
The DOL had put forth an expansive definition of “health care provider” for purposes of excluding these employees from eligibility for leave. The definition advanced by the DOL was 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 included any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. It also included any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.
The Court struck down this definition, finding that it would apply in absurd situations. For example, an English professor at a university with a medical school would be a “health care provider” under this definition. The statute explained that a health care provider would be “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices” and anyone else determined by the Secretary of Labor to be capable of providing health care services. Since the DOL’s interpretation was struck down, the remaining “health care provider” exemption is extremely narrow. Only those who authorized to practice medicine qualify. This could create extreme hardship for health care employers who now must determine how to operate if large groups of their support staff need leave at the same time (for example, in the event of a school closure). It is possible the DOL will make another attempt at rulemaking to strike a balance that would be upheld in court.
As more guidance becomes available, we will keep you informed. Please contact us if you have any questions about employer obligations under the Families First Coronavirus Response Act or other labor and employment laws.