A federal District Court in New York upheld a challenge by the State of New York to the Department of Labor’s interpretation of the Families First Coronavirus Act (“Act”). The State of New York argued that the DOL’s Final Rule (“Final Rule”) implementing the Act unduly restricted leave intended by Congress. The Court agreed, and held that the Final Rule exceeded the DOL’s authority under the Act. See State of New York v. U.S. Dept. of Labor, et al., Civil Action No. 20-CV-3020 (JPO) (S.D.N.Y. Aug. 3, 2020). The two main provisions of the Act are the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. The Court held that four aspects of the Final Rule were invalid. Specifically, the Court invalidated the Final Rule’s:
- Precondition that an employer have work available in order for the employee to qualify for leave;
- Broad definition excluding employees of health care providers;
- Requirement that an employer consent to intermittent leave, and
- Requirement that an employee provide documentation of the need for leave prior to taking leave.
Work-Availability Requirement
Both the paid sick leave and family leave portions of the Act provide paid leave for employees “unable to work (or telework)” for certain qualifying reasons (for example, an employee who is sick and seeking a diagnosis, or subject to a quarantine order). Id. at *11. The Final Rule excludes, however, employees whose employers “do not have work” for them. Id. This includes situations, for example, where—due to the economic downturn—employees are furloughed. The Court concluded that the work-availability requirement was an invalid precondition for leave.
Health Care Provider
As we have noted in prior client advisories, the Final Rule’s definition of “health care provider” is extremely broad. In addition to doctors, nurses, and employees working directly in a health care facility, it also includes any employee of any company that supports operation of the health care facility. As the Court noted, “DOL concedes that an English professor, librarian, or cafeteria manager at a university with a medical school would all be ‘health care providers’ under the Rule.” Id. at *18.
The court invalidated this provision of the Final Rule, indicating that an exempted employee must be someone capable of providing healthcare services. Thus, the interpretation must be focused on the nature of the employee, not the nature of the employer. Id. at *19.
Intermittent Leave
Under the Final Rule, intermittent leave is only possible for certain conditions and then only if both the employee and employer agree. While the Court generally agreed with the DOL regarding the Final Rule’s limitation of intermittent leave to only certain types of qualifying conditions, the Court rejected the Final Rule’s requirement that the employer must consent to intermittent leave. Thus, the Court upheld the Final Rule’s restriction of intermittent leave to certain qualifying conditions, but invalidated the portion of the Final Rule requiring employer consent. Id. at *23.
Documentation Requirements
The Court invalidated the Final Rule’s requirement that an employee provide documentation of the need for leave prior to taking leave, citing the provisions in the Act that contemplated the potential inability to provide advance notice. Id. at *23-24. The substance of the required documentation was upheld; only the temporal requirement was invalidated.
Conclusion
This is the first federal court decision interpreting the validity of the DOL regulations implementing the Act. The decision will almost certainly be appealed, so this is likely not the end of the matter. Parker Hudson attorneys are available to answer any questions or concerns you have regarding the implications of this important ruling, and changes you may need to make to ensure continued compliance with the Act’s requirements.