On August 3, 2020, a federal court in New York threw out a handful of key Department of Labor (DOL) rules for implementing the Families First Coronavirus Response Act (FFCRA). As we’ve previously reported, the FFCRA provides emergency sick leave and family and medical leave to employees who are unable to work for reasons related to COVID-19 (coronavirus). The DOL rules on how to administer the FFCRA and the related DOL FAQs have been widely relied on by employers during this pandemic. The federal court decided that the DOL overstepped its authority with four specific rules:
Work availability requirement: Under this DOL rule, employees aren’t eligible for FFCRA leave if their employer doesn’t have work for them. In other words, the employee can’t use leave if the workplace is temporarily shut down, or if the employee is on furlough or layoff. The court determined that it’s overreaching to exclude all employees from FFCRA benefits under all circumstances when the employer doesn’t have work for them. Further guidance from the DOL will be necessary to determine how employers should handle leave requests from employees currently or previously on furlough or layoff.
Intermittent leave restrictions: The DOL rule only allows employees to take intermittent leave for limited COVID-19 reasons, and then only if the employer and the employee agree. The court didn’t find any rationale to support the requirement for employer consent when the employee’s need for intermittent leave is unrelated to illness. This opens the door for employees to take intermittent FFCRA leave to care for a child whose school or place of care is closed, regardless of whether the employer approves.
Documentation required before leave begins: To the extent the DOL rule requires documentation from the employee prior to taking leave even when the need for leave was unforeseeable, the rule goes beyond what the FFCRA requires and the court said it’s invalid. The documentation itself can still be required; the court only took issue with the timing aspect.
Definition of “health care provider” that can be excluded from the FFCRA: The DOL rule defines “health care provider” based on the employer’s industry rather than the employee’s position or job duties. The court said the employee’s role needs to be connected to providing health care services in order to be properly excluded from the FFCRA. Employers who are excluding employees from FFCRA benefits based on this overbroad definition will need to reevaluate the connection between employees’ roles and the provision of health care services.
The court determined that these invalid portions of the rules can be stricken while the rest of the rules remain in effect (New York v. Dept. of Labor, SD NY, Aug. 2020).
Tips: Although this decision was made by a federal court in New York, employers should presume that the court’s changes to the FFCRA rules apply throughout the country. The DOL is almost certain to appeal this decision, so the validity of these rules and/or what to do in their absence is likely to be uncertain for a while. We will continue to update members on further developments. In the meantime, contact your Vigilant Law Group employment attorney to strategize about how these changes may affect your FFCRA policy. For more information on the FFCRA, see our Model Policy, Families First Coronavirus Response Act Policy, and our Model Form, Families First Coronavirus Response Act Leave Request Form.