On August 3, 2020, the U.S. District Court for the Southern District of New York struck down several key provisions of the Department of Labor’s Final Rule regarding the Families First Coronavirus Response Act (FFCRA), which applies to employers with 500 or fewer employees.
Under the FFCRA, employees are entitled to up to 80 hours of paid leave if they are:
- Under a government isolation or quarantine order related to COVID-19;
- Advised by a healthcare provider to self-quarantine due to COVID-19 concerns;
- Diagnosed with COVID-19 or have symptoms and are in the process of getting a medical diagnosis;
- Providing care for a family or household member who has been diagnosed with COVID-19;
- Caring for a child who cannot attend school or other facility that has been closed due to COVID-19; or
- Experiencing any other substantially similar condition that may arise as specified by the Secretary of Health and Human Services.
The Court’s Decision
The federal court’s decision struck down – either totally or partially – four key provisions of the Final Rule:
#1: Work availability requirement.
The DOL’S Final Rule exempted employers from having to provide FFCRA leave if there was no work for employees to do. The DOL asserted that the “work availability” requirement is supported by the FFCRA because employees are not unable to work due to one of the six reasons listed above if there is no work for them to do.
However, the court disagreed with the DOL’s interpretation, finding the FFCRA was ambiguous on the issue of whether one of the six reasons had to apply to an employee’s inability to work or whether it could be one of multiple reasons. Because of this ambiguity, the court found the work availability requirement to be an impermissible interpretation of the FFCRA. In addition, the court said that since the work availability requirement was only applied to three of the six reasons an employee can qualify for FFCRA leave, it was inconsistent and unreasonable.
#2: Definition of “health care provider.”
Under one FFCRA provision, employers may exclude “health care providers” from coverage at their discretion. The DOL’s Final Rule provided a broad interpretation of what constitutes a “health care provider,” allowing it to include any employee of an employer in the health care field. The court found this definition to be overly broad, taking issue with the DOL’s reliance on the employer’s identity rather than on whether an individual employee’s duties directly relate to the provision of healthcare services.
#3: Intermittent leave consent.
The Final Rule required employees to secure employer consent for all intermittent leave, even though the DOL differentiated between permitted intermittent leave associated with an employee’s own exposure to or symptoms of COVID-19, where intermittent leave may not be allowed unless the employee can work remotely, versus permitted intermittent leave associated with childcare, where intermittent leave is permitted. While the court agreed with the DOL’s distinction between the types of intermittent leave, it found no reasonable explanation in the Final Rule for requiring employees to get employer consent for intermittent leave and vacated that part of the Final Rule.
#4: Provision of documentation prior to taking leave.
The Final Rule required employees to provide documentation with details on their need for leave prior to taking leave. The court struck down this provision, finding the advance notice requirement was inconsistent with the FFCRA, which requires employees to provide notice as soon as practicable.
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