On August 3, 2020, the Southern District of New York (Judge J. Paul Oekten) broadened the scope of paid sick leave for employees seeking relief under the Families First Coronavirus Response Act (“FFCRA”). The Court expanded employee benefits by vacating several features of the U.S. Department of Labor’s (“DOL”) Final Rule regarding administration of the FFCRA. The expanded benefits come at an opportune time with a second wave of crisis looming and families facing massive uncertainty with schools reopening.
The DOL will likely appeal this ruling to the Second Circuit. The Second Circuit may reinstate the vacated features from the Final Rule pending review, but until then, the significance of this ruling cannot be ignored by New York employers, which may be risking non-compliance, liabilities and penalties. Further, employers should anticipate and prepare for more employees to request paid leave pursuant to the expanded benefits under this decision.
Significance for New York Employees
Although it is likely that other states will soon follow New York and challenge the DOL’s Final Rule, New York employees will derive immediate paid leave benefits from this ruling. More workers will be encouraged to apply for FFCRA leave benefits, and more will be able to justify a claim if leave is denied. For example, health care facility workers, such as cafeteria employees or maintenance staff now appear to be entitled to paid leave, and employees may be able to impose intermittent leave on employers as children return to remote learning. Ultimately, this ruling may significantly impact family choices and business functioning at a time when Covid-19 cases continue to rise and employees are worried about balancing child-care needs, remote learning, and the tenuous nature of reopening schools.
Significance for New York Employers
Employers should anticipate renewed and additional opportunities for employees to seek paid leave under both aspects the FFCRA. These requests will present higher potential administrative and financial burdens, and risk of exposure for claims both with the DOL for wrongfully-denied leave, and retaliation for requesting leave. Employers should take care to collaborate with employees, err on the side of accommodating requests when possible, and consult with legal counsel when in doubt.
With these principles in mind, the decision is discussed below as follows:
The FFRCA went into effect on April 1, 2020, to provide employees unable to work from the Covid-19 pandemic with paid leave. On April 6, 2020, the DOL promulgated a Final Rule implementing the FFRCA’s paid leave provisions. Here, implementation of two major provisions were at issue: The Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”). Both the EFMLEA and the EPSLA obligate employers to grant paid sick leave and emergency family leave to employees unable to work - or telework – because of the pandemic.
The EPSLA grants up to 80 hours of paid leave to employees unable to work - or telework - due to a need for leave because of any six Covid-19 related criteria:
- the employee is subject to a government quarantine/isolation order related to Covid-19;
- the employee was advised by a healthcare provider to self-quarantine because of Covid-19 concerns;
- the employee is experiencing Covid-19 symptoms and seeking a diagnosis;
- the employee is caring for an individual who is subject to a government quarantine/isolation order or who has been advised by a healthcare provider to self-quarantine;
- the employee is caring for their child whose school or childcare facility has closed or whose childcare provider is unavailable due to Covid-19 symptoms; or
- the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
- For the first three categories, paid EPSLA leave is at 100% of the employee’s regular rate of pay. For the remaining three categories, paid leave is at two-thirds of the regular rate. The EFMLEA, on the other hand, grants up to twelve weeks of job-protected leave at two-thirds of an employee’s regular rate of pay when the child-care related criteria are satisfied.
Most recently, New York State sued the DOL arguing that several features of the Final Rule are invalid under statutory interpretation principles. The Court mostly agreed and in effect, substantively expanded employee leave benefits under the law. The substantive effects are as follows:
“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…”
What follows are highlights of the Court’s decision and a discussion of its likely impact on employment law litigation.
The Decision Vacates Four Crucial Provisions
The Court struck four provisions of the Final Rule: (1) the “work-availability” requirement; (2) the definition of health care provider; (3) the temporal aspect of advance documentation requirements; and (4) the requirement for employer consent to intermittent leave. The striking of each provision is assessed in pertinent part as follows:
1. The DOL’s Work-Availability Requirement Invalid
The Final Rule’s work-availability requirement excluded employees from receiving FFRCA paid leave if their employers did not have work for them (i.e., furloughed them or were closed due to the pandemic). Under the Final Rule, the work-availability limitation applied to three of the six qualifying criteria listed above. New York State argued that the work-availability requirement conflicted with the statute’s plain meaning and was therefore invalid. The DOL argued that the work-availability requirement was consistent with the FFRCA because if an employer is closed or has no work available, then an employee is not really unable to work (or telework) due to one of the six listed criteria.
The Court disagreed and vacated the DOL’s work-availability requirement by finding that applying the work-availability requirement to only three of the six qualifying reasons is inconsistent and unreasonable. The Court determined that it was unreasonable given that the requirement “is an enormously consequential determination that may considerably narrow the statute’s potential scope.” In effect, an employee may now be eligible for paid leave despite an employer being closed or having no work for them to do. New York employers must now recognize that they cannot deny FFCRA paid leave to employees satisfying any of the qualifying criteria on grounds that no work is available.
2. The Definition of Health Care Provider Struck Down
Under the FFCRA, employers may exclude health care providers from coverage, in their discretion. The Final Rule defined health care providers broadly, essentially encompassing any employee of an employer even remotely connected with the health care industry (including professors, administrative clerks, etc.). In vacating the DOL’s definition, the Court ruled that the definition was vastly overboard in that it includes employees whose roles bear no nexus to the provision of critical healthcare services, except the identify of their employers, and who are not even arguably necessary or relevant to the healthcare system’s vitality.
By vacating the DOL’s definition, a broader range of health care workers are no longer foreclosed from FFRCA paid leave entitlements. Although the Court did not provide a new definition, health care employers will have to consider possible exclusions on a case-by-case basis by balancing an employee’s specific role in addressing the pandemic and ability to provide healthcare services.
3. Intermittent Leave Provision Partially Struck Down
In the Final Rule, the DOL required employer consent for all intermittent leave arrangements, regardless of the type of leave. Although the Court agreed with the DOL differentiating between the types of intermittent leave requirements (because it was based on stopping the spread of Covid-19), the Court found that the DOL failed to explain why employer consent is required. As such, an employer in New York cannot refuse to provide an employee with intermittent leave. New York employers must now be prepared to offer intermittent leave as the school year commences and families struggle with remote learning and child care needs if school closes down.
4. The Advance Documentation Requirement Invalid
The Final Rule mandated that employees provide employers with documentation outlining the details of their need for leave as a condition to taking the leave. The Court ruled that this condition of an advance documentation was inconsistent with the FFRCA. In effect, employers can no longer condition paid leave on the provision of advance documentation, and must grant the leave request upon reasonable verbal request.
Navigating the pandemic is already exceedingly difficult for business owners. Between conflicting information from government agencies on PPE requirements and providing a safe workplace, to differing interpretations of these ground-breaking laws, it has never been more important to seek legal assistance in responding to employee requests for leave or internal complaints related to the FFCRA. The impact of the SDNY’s decision is wide-ranging for New York employers, regardless of the industry in which they operate. WSHB stands at the ready to assist employers in these uncertain times, and help navigate a path to optimal compliance and minimal exposure while recognizing the business realities of each unique challenge.