Soon after the U.S. Department of Labor (“DOL”) issued its Families First Coronavirus Response Act (“FFCRA”) regulations in early April 2020, the State of New York filed a lawsuit against the DOL, challenging several significant provisions of the regulations. On August 3, 2020, the Southern District of New York issued a decision in the case, vacating the following four provisions of the FFCRA regulations:

• The definition of “health care provider”
• The work-availability requirement
• The requirement that an employee secure employer consent for intermittent leave for certain qualifying reasons, and
• The requirement that the documentation be provided to an employer before taking leave.

Significantly, the court made clear that the rest of the regulations remain standing. The timing of the court’s decision is noteworthy, considering the regulations have been in effect and applied by employers for four months and are not set to expire until December 31, 2020.

Background

As explained in our earlier legal alert, the FFCRA contains two major employee leave changes for certain covered employers. First, the FFCRA expands the existing Family & Medical Leave Act (“FMLA”), creating the Emergency Family & Medical Leave Expansion Act (“EFMLEA”). The EFMLEA provides for employee leave due to a pandemic-related closure of the employee’s child’s school. Second, the FFCRA created the Emergency Federal Paid Sick Leave Act (“EPSLA”), which provides paid sick leave for employees who cannot work or telework because they satisfy one of six qualifying COVID-19-related conditions.

The court’s decision makes significant changes to the way in which many employers have been applying the FFCRA and implementing regulations. It also leaves employers with many unanswered questions.

Definition of Health Care Provider

Under the FFCRA, “health care providers” are essentially not eligible for leave. First, under the EFMLEA, an employer of an employee who is a “health care provider” can elect to exclude such employee from the benefits provided by the EFMLEA. Second, employers can deny leave under the EPSLA if the employee is a “health care provider.” Of note, the existing, pre-COVID FMLA provides the definition of “health care provider” under the FFCRA. That definition is: “(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.”

The DOL’s FFCRA regulations invoked the Secretary of Labor’s authority under subsection (B), and define “health care provider” for purposes of the FFCRA quite broadly, as follows:

Anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

This definition includes any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility, [and] anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.

The court found the DOL’s regulatory definition of “health care provider” to be vastly overbroad. In its analysis, the court noted that the DOL conceded “an English professor, librarian, or cafeteria manager at a university with a medical school would all be ‘health care providers’” under the existing definition.

The court’s ruling strikes down the definition, reasoning that the definition “includes employees whose roles bear no nexus whatsoever to the provision of healthcare services, except the identity of their employers, and who are not even arguably necessary or relevant to the healthcare system’s vitality.”

The Work-Availability Requirement

The FFCRA regulations exclude from EFMLEA and EPSLA benefits those employees whose employers “do[] not have work” for them. This exclusion is significant considering the pandemic has caused the temporary shutdown and slowdown of businesses across the country, and therefore has decreased the work immediately available for employees.

The court vacated this work-availability rule for two reasons. First, the rule was applied inconsistently, impacting only three out of the six qualifying COVID-19-related conditions for leave (and the regulations failed to provide an explanation for such differential treatment). Second, the court found the DOL’s barebones explanation for the existence of the rule to be “patently deficient,” holding the rule was not the result of “reasoned decision-making.”

Intermittent Leave and Documentation Provisions

The court vacated additional provisions in the regulations relating to intermittent leave. Specifically, the court vacated the provision that required an employee to obtain their employer’s consent to intermittent leave for qualifying reasons. However, the court let survive the DOL’s ban on intermittent leave for certain conditions that “logically correlate with a higher risk of viral infection” (e.g. reasons for leave where employees are experiencing symptoms of COVID-19, are ordered to isolate or quarantine, or may be at risk of exposure).

In addition, the court vacated the provision of the regulations that require employees to submit supporting documentation to their employer “prior to taking [FFCRA] leave.” That documentation includes details on the employee’s “reason for leave, the duration of the requested leave, and, when relevant, the authority for the isolation or quarantine order qualifying them for leave.” While the court specifically held that “the documentation requirements, to the extent they are a precondition to leave, cannot stand,” the court did not strike down an employer’s ability to require the specified documents post-leave or possibly during leave.

What Happens Next?

It is important to keep in mind that this case was filed by the State of New York—meaning other states may file similar lawsuits further challenging the regulations, or perhaps, take a position that is more in-line with the DOL’s regulations. While it remains unclear at this time, the DOL may decide to appeal this decision, or instead, issue new, modified FFCRA regulations.

In the meantime, employers should monitor the DOL website for announcements regarding possible changes or updates to the FFCRA regulations, as well as keep an eye out for a possible appeal or other legal challenges to the decision. Employers should also keep in mind that the rest of the FFCRA regulations remain in effect.