By now, many of you have heard that last week a federal judge expanded several provisions of the Family First Coronavirus Response Act (FFCRA). We have been postponing our alert on this hoping the Department of Labor would issue some guidance for employers. So far, there has been no word from the DOL.

On August 3, 2020, Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York issued an order invalidating provisions of the U.S. Department of Labor’s (DOL) regulations (Final Rule) implementing the Family First Coronavirus Response Act (FFCRA). The New York Attorney General filed a suit against the DOL on April 14^th asserting that certain provisions in the Final Rule exceeded the DOL’s authority. The full order by Judge Oetken can be found here.

Judge Oetken’s order:

1. 1. Invalidated the “work-availability” requirement, allowing employees to take leave under FFCRA regardless of whether the employer has work for the employee;
   2. Struck down the expansive definition of “health care provider”;
   3. Struck down the employer consent requirement for intermittent leave, but upheld the DOL’s limitations allowing intermittent leave only for certain qualifying conditions; and
   4. Struck down documentation requirements prior to commencing leave, but recognized employers ability to require post-leave documentation.

Work Availability:
The order vacated the “work-availability” requirement which denied employees leave if they did not have work available from their employer. As a result, employees can request leave under FFCRA even when they are furloughed or temporarily laid off, or if their employers have temporarily closed under state or local orders, or due to economic circumstances related to COVID.

Health Care Provider Definition:
FFCRA allows employers to elect to exclude “health care providers” from paid leave benefits. The DOL expanded the definition of “health care provider” by creating a definition based on the classification of the employer instead of the employees. The DOL argued that the broad definition was consistent with the statute’s purpose of exempting employees who are essential to maintaining the health care system.

Judge Oetken struck this overly broad definition, finding the definition “included employees who bear no nexus whatsoever to the provision of healthcare services, except the identity of their employer, who are not even arguably necessary or relevant to the healthcare system’s vitality.”

By striking the broad definition, the current regulatory definition of “health care provider” is the definition contained in the FMLA regulations at 29 CFR sec. 825.125:

1. 1. 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
   2. any other person determined by the Secretary to be capable of providing health care services.

The DOL still retains the power to provide a new definition of “health care provider,” but until then, the only regulatory guidance on “health care provider” is contained in FMLA.

Intermittent Leave:
Judge Oetken removed the requirement of employer consent to take intermittent leave. Further, Judge Oetken upheld the restrictions on the intermittent leave imposed by the DOL. An employer working onsite may only take intermittent leave when caring for a child whose school or place of care is closed or child care is unavailable.

Documentation Requirements:
Judge Oetken found that the pre-leave documentation requirement was inconsistent with the leave requirements for EFMLEA and EPSLA. Thus, employers cannot require pre-leave documentation but can require post-leave documentation.

(Special thanks to Nicole Zeman for her assistance with this article.)