From time to time, Keane & Beane, P.C., issues Legal Alerts pertaining to new legislation or recent cases of interest. On August 3, 2020, the United States District Court for the Southern District of New York (“District Court”) rendered its Decision in State of New York v. United States Department of Labor, et al., vacating certain provisions of the Families First Coronavirus Response Act (“FFCRA”) regulations issued by the United States Secretary of Labor (“Regulations”). Specifically, the Decision vacated the Regulations’ provisions that broadly defined the term “health care provider,” excluded employees from benefits if their employers do not have work available for them, required employees to provide documentation prior to taking leave, and required an employer to consent to the use of leave intermittently. A copy of the Decision can be found here.
Definition of Health Care Provider
Under the FFCRA, an employer can deny leave under both the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family Medical Leave Expansion Act (“FMLEA”) to employees deemed “health care providers”. Under the Regulations, the term “health care providers” was broadly defined to include, inter alia, any employees who work in an institution, facility, location, or site where medical services are provided, regardless of whether the employee actually provides, or is even capable of providing, healthcare services. The District Court found this definition overbroad and held that the employee must be capable of providing healthcare services, as opposed to performing work that is merely remotely related to someone else’s provision of healthcare services, in order to be deemed to be a “health care provider”. As such, the District Court struck down the Regulation’s definition of “health care provider”.
Work Availability Requirement
The Regulations provide that employees whose employers do not have work available for them are not eligible for leave under the EPSLA or the FMLEA. The District Court struck down this provision as unreasonable because: (1) by the express language of the Regulations, it only applied to three out of the six reasons for which an employee could take leave under the EPSLA, rendering the requirement inconsistent and, therefore, unreasonable; and (2) the Department of Labor’s “barebones” explanation for the work availability requirement (that the employee would not have been able to work even if he/she did not need the leave), which considerably narrowed the scope of the FFCRA, was insufficient given the “enormously consequential” impact of the requirement and, therefore, not the result of reasoned decision-making.
The District Court’s Decision to strike down the work availability requirement is significant as it allows employees who have been furloughed or temporarily laid off to request leave and also requires employers who have temporarily ceased operations during the pandemic to provide leave to their employees.
The Regulations require that employees submit to their employer, prior to taking leave under the EPSLA and/or FMLEA, documentation which includes, but is not limited to, their reason for leave, the duration of the requested leave, and information demonstrating their entitlement to the requested leave (such as the authority for the isolation or quarantine order qualifying them for leave). The District Court struck down the requirement that documentation be provided prior to an employee taking leave, noting that the statutory language of both the EPSLA and FMLEA indicated that such documentation could be provided after the commencement of leave. However, it should be noted that employers may still require employees to submit the documentation as set forth in the Regulations for their use of leave under the EPSLA and the FMLEA; such documentation simply cannot be a precondition of taking such leave.
The Regulations provide that intermittent leave under the EPSLA and/or the FMLEA is permitted on an intermittent basis only upon employer consent and only in the following circumstances: (1) the leave is taken while the employee is telecommuting; or (2) the leave is taken for the purpose of caring for a child due to school or childcare provider closures. The Regulations prohibit intermittent leave for any other reasons (i.e., where employees are not teleworking and are under quarantine, are symptomatic and are seeking diagnosis and/or are caring for a family member under quarantine) as such other reasons implicate the risk of viral transmission. While the District Court upheld the provisions of the Regulations which barred intermittent leave where the risk of viral transmission is present, it struck down the employer consent requirement. The District Court held that the Department of Labor failed to provide any rationale for the employer consent requirement, rendering it invalid.
The implications of the District Court’s determination to strike down the employer consent requirement for intermittent leave are significant, especially for school districts. First, employees who may have been unable or unwilling to take leave under the FMLEA for financial reasons may be more willing to do so if they can take the leave on an intermittent basis. Second, finding substitutes for multiple teachers taking intermittent leave under the FMLEA will likely represent an extreme hardship for school districts and will make already difficult scheduling decisions even more onerous.
Effect of the Decision on the Regulations
The Department of Labor may appeal the District Court’s Decision to the United States Court of Appeals, Second Circuit, and ask that the effect of the District Court’s Decision be stayed pending any appeal. The Department of Labor may also seek to revise its Regulations to address the issues identified in the District Court’s Decision. However, as of the date of this Legal Alert, no appeal has been filed and no revisions have been made to the Regulations. In the meantime, school districts should not rely upon the provisions of the Regulations struck down by the District Court and should contact this Office with respect to any questions regarding requests related to the FFCRA. We will keep you updated with any developments related to the District Court’s Decision and/or the Department of Labor’s Regulations.
Consult Counsel Regarding Specific Questions
If you have any questions or concerns regarding the District Court’s Decision, this Legal Alert or require further assistance with this topic, please contact William Kang or one of our Labor Relations & Employment Law or Education Law Attorneys.