More Confusion Regarding Families First Coronavirus Response Act (“FFCRA”): SDNY Issues Order Vacating Parts of DOL Final Regulation

On August 3, 2020, the Southern District of New York (Judge J. Paul Oetken) issued a decision vacating four (4) parts of the FFCRA but upholding the rest.  This decision came out of a lawsuit filed by the State of New York in which the State challenged certain aspects of the FFCRA and the regulations implementing the law. See State of New York v. U.S. Department of Labor, 1:20-cv-03020 (S.D.N.Y. 2020).

As we have previously blogged on 3/17/20, 3/19/20, 3/27/20 & 4/6/20, the FFCRA was enacted into law on April 1, 2020 to address employees’ needs in light of the COVID-19 pandemic. Also on April 1, 2020, the US Department of Labor (“DOL”) issued “temporary” regulations that address employer obligations and employee rights under the FFCRA (the “Rule”). In general, the FFCRA requires most employers with fewer than 500 workers to provide paid time off for specified reasons related to COVID-19, including that (1) the employee is suffering from COVID-19 symptoms and seeking a medical diagnosis for same or is subject to a quarantine order; (2) the employee is caring for a family member subject to a quarantine, is caring for a child whose school is closed or the employee is experiencing a “substantially similar condition” (generally referred to as “Paid Sick Time” or “PST”); or (3) the employee has a bona fide need for leave to care for a child whose school or childcare center is closed due to the current pandemic or for a similar reason (generally referred to as “Expanded Family and Medical Leave” or “EFMLA”).

The FFCRA also sets up a system, administered by the Department of the Treasury, to reimburse those employers, through tax credits, for the cost of providing the required additional paid leave.  Employers should note that the FFCRA is presently scheduled to expire on December 31, 2020.

Against this backdrop, in State of New York, the Court overruled the following portions of the Rule: “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.”  The reasoning for these changes follows:

1. Work availability – The FFCRA provides that paid leave and emergency family leave is not available in some (but not all) qualifying FFCRA cases where the employer does not have work available for the employee (termed the “work availability” requirement). Specifically, the work availability requirement exists where (i) the employee is subject to an applicable quarantine order; (ii) the employee is caring for an individual who is subject to an applicable quarantine order; or (iii) where the employee is caring for a child where the school or child care provider is unavailable for COVID-related reasons.  The DOL argued that the employee should not be entitled to FFCRA benefits because, even barring the quarantine order or school closure, they would not be entitled to work because the employer does not have work available.  The Court struck this provision down, finding that it was not rational to make a distinction among the bases for leave.

2. Health care provider – The definition of “health care provider” is significant because the FFCRA allows employers to deny such “health care provider” employees PST and EFMLA.  According to the Court, the definition in the Rule, which includes “anyone employed at a doctor’s office, hospital, medical school” or other facilities where “medical services are provided, is inconsistent with the FFCRA statute itself. The DOL argued that the term was broadly worded so as to allow for a functioning health care system during the pandemic. The Court noted, however, that the Rule’s broad definition of “health care provider” includes workers that do not have any bearing on the health care system or the provision of health care services such as “an English professor, librarian, or cafeteria manager at a university with a medical school.”

3. Intermittent leave – Although the Court did not take issue with the FFCRA’s provisions limiting intermittent leave to only those situations wherein an employee could not transmit the virus in the workplace, it did find that the Rule should not require employer consent for intermittent leave (such as in a childcare situation) and struck down this aspect of the Rule.

4. Documentation requirement – The Court found that the Rule was inconsistent in terms of the timing for the employees’ provision of documentation.  The Rule provides that certain information must be provided, including the employee’s name, date of leave, qualifying reason for the leave and a statement that the employee is unable to work because of the qualifying reason for leave.  Specifically, the Court found that the timing requirement that required documentation tobe provided before PST or EFMLA leave is taken is inconsistent with the notice provisions, and so vacated only that part of the regulation’s documentation provision.

The impact of the State of New York decision remains unclear, however, as it will likely be appealed or the DOL could address the issues raised in another round of rulemaking. We are also monitoring whether any other courts opine on the Rule.

The practical effect of this decision is to generally broaden the situations in which leave is warranted under the FFCRA, although it leaves many questions unanswered including, but not limited to, its geographical scope and whether it is retroactive or not. As COVID-19 rages on and children “return” (or do not return) to school this Fall, employers and employees will continue to struggle with the balance between caregiving and work.  Given the complexities of the law, employers are advised to consult counsel in determining employees’ rights under the FFCRA and related law.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.