On August 3, 2020, a United States Federal District Court in New York struck down several key provisions within the regulations promulgated by the United States Department of Labor implementing the Families First Coronavirus Response Act (“FFCRA”). Although the Court’s decision is not considered binding precedent in Massachusetts, its reasoning is persuasive and could very well be adopted by the Federal District Court in Massachusetts if called upon to interpret the FFCRA regulations. The case – State of New York v. United States Department of Labor – is significant because it alters the advice previously provided to employers in the Commonwealth and throughout the United States on several key points of the FFCRA.
Readers will recall that the FFCRA was passed by Congress and signed by the President this past March in response to the COVID-19 pandemic that was spreading across the Nation. Two notable provisions from the FFCRA are the Emergency Paid Sick Leave Act (“EPSLA”) – which provides up to 80 hours of paid sick leave to employees with one of six qualifying COVID-19-related conditions– and the Emergency Family and Medical Leave Expansion Act (“EFMLA”) – which provides paid leave to employees who are unable to work (or telework) because they need to care for a child as a result of the closure of the child’s school or place of care due to the pandemic.
As part of the FFCRA, Congress authorized the Department of Labor (“DOL”) to promulgate regulations interpreting the various provisions of the EMFLA and the EPSLA. Acting pursuant to its statutory authority, the DOL issued its regulations on April 1, 2020 (the “Regulations”). Two weeks later, the State of New York filed a lawsuit in Federal Court in New York against the DOL challenging four specific aspects of the Regulations. The portions of the Regulations challenged, and the Court’s holdings as to each, are set forth below:
Work Availability Requirement Rejected
Under the Regulations, employees were deemed by the DOL to not be eligible for EPLSA and/or EMFLA if their employers did not have sufficient work for them. Thus, employees who were furloughed by their employers as a result of a lack of work or based on a need to close their business in response to the Governor’s order were not eligible for EPSLA or EMFMLA.
The Court rejected the DOL’s Regulation (and interpretation of the statute) on this point and held that if an employer furloughs an employee due to a lack of work available and/or temporarily shuts down its business due to a lack of work, the employee is nonetheless entitled to paid leave benefits under EPSLA and/or EFMLA if the employee would, nonetheless, be prohibited from working due to a COVID-19 qualifying reason if the employee had not been furloughed. An employee is not, however, entitled to EPSLA and/or EFMLA leave if they are laid off from their employment (i.e., their employment is terminated). To the extent an employer intends to lay off employees, it should be careful to ensure that the decision is based entirely on legitimate business reasons, and is not made to purposefully avoid providing employees with leave under the FFCRA.
DOL’s Definition of Health Care Provider Rejected
The FFCRA permits employers to exclude “health care providers” from eligibility for leave benefits. In its Regulations, the DOL expansively defined “health care provider.” The DOL’s expansive definition meant that employers could exclude a significant subset of employees who were considered “health care providers” from being eligible for leave, including essentially any employee of a healthcare institution, regardless of whether such employee provided direct patient care.
The Court held that the DOL’s definition of “health care provider” in the Regulations was overbroad. In response, the Court adopted the much narrower definition of “health care provider” set forth in the Family and Medical Leave Act: “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary (of Labor) to be capable of providing health care services.” Employers are advised to consult the FMLA definition as set forth at 29 CFR § 825.102 for a listing of “other person[s]” determined by the Secretary to be capable of providing health care services.
Intermittent Leave Consent Requirement Rejected
The Regulations allow employees to take EFMLA and EPSLA (for a subset of qualifying conditions) on an intermittent basis only if the employer consents.
The Court rejected the DOL’s “employer consent” requirement and, in so doing, held that employees do not need to obtain the consent of their employer in order to take intermittent leave under the EFMLA and the EPLSA if the reason for leave under the EPLSA is to care for a child due to the closure of a child’s school or place of care.
Requirement for Supporting Documentation In Advance of Leave Rejected
The Regulations, in general, require employees to submit documentation to their employers prior to taking leave under the EPSLA/EFMLA.
The Court held that employees are not required to submit documentation to their employers in advance of taking leave. Stated differently, an employer may not condition an employee’s ability to take EPSLA and/or EFMLA leave on submitting documentation prior to the need for leave.
Given that this case was decided by a trial court, the DOL may appeal the decision to the United States Court of Appeals for the Second Circuit. We will keep you posted on any changes or developments.
Due to the complexity of many of the situations that arise under the FFCRA and employee requests for leave, employers are well-advised to seek the advice of their legal counsel before acting on such requests. The Labor, Employment, & Employee Benefits Group at Mirick O’Connell is ready and available to assist.