On Aug. 3, 2020, U.S. District Court Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York vacated several significant portions of a Department of Labor (DOL) Final Rule which employers had been relying upon to administer employee leave requests pursuant to the Families First Coronavirus Response Act (FFCRA). Although it is too early to know if the decision will be affirmed on appeal, or adopted by courts in other jurisdictions, employers should anticipate a renewed interest for FFCRA leave among employees previously denied it or who believed it was unavailable. And those who continue to rely on the DOL’s rule to deny such requests will be doing so at their own risk.
As Judge Oetken succinctly summarizes:
The following portions, and only the following portions, of the Final Rule are therefore vacated:  the work-availability requirement;  the definition of “health care provider”;  the requirement that an employee secure employer consent for intermittent leave; and  the temporal aspect of the documentation requirement, that is, the requirement that the documentation be provided before taking leave.
Of the four provisions vacated, the first two are more substantive and likely will have far more impact on the workplace than the latter two.
With respect to the fourth, for example, the court did not prohibit employers from requiring reasonable documentation from employees. It held that “[t]he documentation requirements, to the extent they are a precondition to leave, cannot stand,” but also made clear that “the substance of the documentation requirement, as distinguished from its temporal aspect, stand[s].”
Similarly, as to the third, the court vacated the rule’s requirement that an employee secure employer consent for intermittent leave. The impact of this is relatively limited, however, since the court sided with the DOL and upheld the portion of the final rule which permits an outright ban on intermittent leave for certain qualifying conditions, i.e., “those which logically correlate with a higher risk of viral infection.” Thus, as a practical matter, even though employer consent is no longer required, employers may continue to deny intermittent leave as non-qualifying in many situations.
The FFCRA extended certain types of paid leave under either the Emergency Paid Sick Leave Act (EPSLA) or the Emergency Family and Medical Leave Expansion (EFMLEA) to covered employees if they “were unable to work (or telework) due to a need for leave” for certain specifically delineated reasons related to COVID-19. See FFCRA Sections 5102(a), 110(a)(2)(A). The DOL’s final rule, however, excludes otherwise eligible employees from such benefits under a “work-availability requirement” if their employers do not have work for them. See final rule at 19,349-50 (Sections 826.20(a)(2), (6), (9), (b)(1)).
The DOL’s rationale for the work-availability requirement is essentially that the terms “due to” and “because,” as used in the applicable FFCRA provisions, require a but-for causal relationship between the employee’s need for leave and the employee being able to work. If no work is available, the DOL reasons, such employees would not be able to work regardless of their need for leave, so the requisite but-for causation is lacking.
In rejecting the DOL’s argument the court essentially concluded that Congress would have said so more clearly if it had intended the relevant terms to mean “but-for” or the qualifying leave to be the sole reason for the employee’s inability to work. Perhaps the court’s decision is better understood, however, from its initial observation that the work availability requirement “is hugely consequential for the employees and employers covered by the FFCRA, because the COVID-19 crisis has occasioned the temporary shutdown and slowdown for countless businesses nationwide…” In any event, if the decision stands it will significantly increase the number of employees eligible for these paid leave benefits since employees previously denied such leave because the employer lacked work for them will now be eligible for it. And while they may ultimately be reimbursed for the expense, it will also add immediate financial and operational pressures to many businesses already struggling for survival.
The final provision struck down in Judge Oetken’s decision is the DOL rule’s definition of “health care provider.” The significance of this definition under the FFCRA, of course, is that employers are permitted to exclude health care providers from leave benefits.
Judge Oetken ruled that the definition of health care provider in the DOL rule is too broad. Without quoting the lengthy definition from the DOL’s rule, it is sufficient to note, as Judge Oetken observed, that the definition is so broad that the “DOL concedes that an English professor, librarian, or cafeteria manager at a university with a medical school would all be ‘health care provider’s under the Rule.”
In rejecting the definition, the court reasoned that “[t]he statute requires that the Secretary determine that the employee [or category of employees] be capable of furnishing healthcare services” rather than base the determination “entirely on the identity of the employer” (emphasis by court). The DOL argued that its broad definition of the term was essential to the effective functioning of the healthcare system, but the Court saw this as both contrary to the statute’s unambiguous terms and vastly overbroad even if such rationale was valid.
Again, it will be interesting to see how this case develops and is applied. While unlikely, it is also possible that the DOL will make revisions to the final rule. In any event, employers should take steps now to decide how best to respond to the likely uptick in FFCRA leave requests.
Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.