June 24, 2020 – Yesterday, a New York district court judge struck down portions of the Department of Labor’s Final Rule implemented to address the Families First Coronavirus Response Act (FFCRA). The case was filed by the State of New York under the Administrative Procedure Act, which governs the process by which federal agencies develop and issue regulations. Rejecting the DOL’s bid to dismiss the claims on standing grounds, the district court vacated four separate provisions of the Final Rule on the grounds that they exceeded the agency’s authority under the statute.
First, in a move that will greatly expand access to leave under the FFCRA, the court vacated the work availability requirements of the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). As a reminder, the EPSLA grants leave to employees who are “unable to work (or telework)” due to a need for leave because of six COVID-19 related criteria. The EFMLEA similarly grants leave to employees who are “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” The DOL’s Final Rule takes the position that where work is not available, leave under some of the qualifying circumstances for EPSLA leave (and the sole circumstance for EFMLEA leave) is also unavailable. The Court concluded that this “work availability” requirement is unreasoned insofar as it treats three of the EPSLA qualifying conditions differently from the others without any explanation, and further, that the DOL’s justification for the requirement is “patently deficient.”
Second, the Court vacated the Final Rule’s broad-sweeping definition of “health care provider,” finding that it improperly “hinges entirely on the identity of the employer, in that it applies to anyone employed at or by certain classes of employers, rather than the skills, role, duties, or capabilities of a class of employees.” The Court concluded that the Department’s definition should have focused on the capability of particular employees to furnish healthcare services and not simply that their work is “remotely related to someone else’s provision of healthcare services.”
Third, while the Court rejected most aspects of the State’s challenge to the intermittent leave provisions, it nonetheless found the employer consent requirement for such leave unreasonable. Under the FFCRA, intermittent leave is only permitted for those circumstances that do not logically correlate to a higher risk of infection. However, even for those circumstances, the DOL’s Final Rule demands that employer consent be obtained. The Court found no justification for this prerequisite in the context of the qualifying conditions “which concededly do not implicate the same public-health considerations” as those presenting a higher risk of infection and vacated the requirement on that basis.
Fourth and finally, the Court found the Final Rule’s requirement that employees taking FFCRA leave submit documentation supporting such leave prior to commencement of leave to be at odds with the language of the Act, which instead requires employees to provide as much notice as practicable and/or to follow “reasonable notice procedures.” The Court vacated the temporal aspect of the documentation requirement – i.e., the requirement that documentation be provided before taking leave—but upheld the substance of the provision.
While the district court’s vacatur is presumptively national in scope, the DOL is likely to appeal and may request a stay of the order pending said appeal. Absent a stay, however, companies should amend their leave policies and practices to comply with the district court’s order.
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Because legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.
