Thu, 08/06/2020
On August 3, 2020, the Southern District of New York concluded that parts of the Department of Labor’s Final Rule implementing the Families First Coronavirus Response Act (“FFCRA”) were overly broad and, therefore, invalid. The Court concluded that, although DOL “labored under considerable pressure in promulgating the Final Rule,” it overstepped its bounds in interpreting three areas of the FFCRA relating to (1) whether employees must have work available to them to be covered by the Act, (2) the definition of “health care provider” under the Act, and (3) time limits on requesting FFCRA leave.
As the nation battled the COVID-19 pandemic, the FFCRA expanded the paid leave available to employees, granting Emergency Paid Sick Leave to workers who are “unable to work (or telework) due to a need for leave because” of any of six COVID-19-related criteria. FFCRA § 5102(a). The FFCRA also expanded the circumstances under which employees can take family and medical leave – EFMLEA applies to employees ““unable to work (or telework) due to a need for leave to care for . . . [a child] due to a public health emergency.” FFCRA § 101(a)(2)(A).
First, DOL’s Final Rule excluded workers whose employers “do[] not have work” for them from the expanded leave benefits. This definition excluded many workers whose employers had furloughed them or cut their hours due to COVID-19-related work stoppages. First, the Court concluded that DOL’s interpretation of the Final Rule exceeded the plain language of the Rule, which applied the “work availability” provisions only to three of the six qualifying conditions under the EPSLA and to the EFMLEA. Second, the Court concluded that DOL failed to justify its application of the work-availability requirement to all situations. As a result, the Court struck down the definition.
Second, the FFCRA permits employers to exclude “health care providers” from the Act’s coverage. The FMLA, which supplies the relevant statutory definitions for the FFCRA, defines a “health care provider “ as: “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 to be capable of providing health care services.” 29 U.S.C. § 2611(6). In its Final Rule, however, the DOL defined a “health care provider” for purposes of defining which workers could be excluded from the FFRCA leave provisions as: “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[.] The definition also included “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.” Final Rule at 19,351. DOL conceded that the definition was expansive enough to define “an English professor, librarian, or cafeteria manager at a university with a medical school” as a “health care provider” under the FFCRA.
The Court concluded that DOL’s definition was overly broad because the statutory test “requires at least a minimally role-specific determination,” where DOL’s definition hinged on the identity of the employer, rather than the “skills, role, duties, or capabilities of a class of employees.”
Finally, the Court invalidated the Final Rule’s requirement that, employees must submit to their employer, “prior to taking [FFCRA] leave,” documentation indicating their reason for leave, the duration of the requested leave, and, when relevant, the authority for the isolation or quarantine order qualifying them for leave. The Court found the documentation requirements – “to the extent they are a precondition on leave” – overly broad because the FFCRA provides that “[i]n any case where the necessity for [leave] is foreseeable, an employee shall provide the employer with such notice of leave as is practicable” (as to EFMLEA leave) and that “[a]fter the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time,” as to the EPSLA.
This decision means that some furloughed workers who were previously denied benefits are entitled to FFCRA leave benefits, and that many workers employed by hospitals, doctors’ offices, and clinics are now protected by the FFCRA. The Court’s decision is available at https://www.nysd.uscourts.gov/sites/default/files/2020-08/State%20of%20New%20York%20v.%20United%20States%20Department%20of%20Labor%20et%20al%2C%2020-cv-3020%20%28JPO%29.pdf.
For more information about workers’ rights during the COVID-19 pandemic, visit MSE’s Coronavirus Information page at https://www.mselaborlaw.com/resources/coronavirus-information.
