Court Strikes Significant Portions of DOL’s FFCRA Final Rule

Congress passed the Families First Coronavirus Response Act (FFCRA) with breakneck speed: it passed the House of Representatives on March 14, the Senate on March 18, and was signed into law by the President that same day.  Its effective date was April 1 – less than two weeks after its passage.  Mostly small and medium-size employers who were already reeling from the developing pandemic were suddenly confronted with unprecedented obligations to provide paid sick leave (EPSLA) and emergency family leave (EFMLEA) to employees unable to work for various reasons, such as suspected COVID-19 infection, state and local “stay-at-home” orders, and lack of child care due to school closures. The FFCRA’s leave requirements raised numerous questions for employers, who eagerly awaited regulatory guidance on a variety of issues ranging from whether leave needed to be provided in the absence of available work to who was exempt from the FFCRA’s obligations.  On the day the FFCRA took effect – April 1 – the United States Department of Labor published regulations interpreting the FFCRA’s obligations for employers (Final Rule).  Employers have been administering FFCRA leave according to the DOL’s Final Rule for over four months.

Less than two weeks after the DOL issued its Final Rule, however, the State of New York filed a lawsuit in the U.S. District Court, Southern District of New York, alleging various portions of the Final Rule were unlawful and beyond the DOL’s authority. On August 3, 2020, that court ruled that several important features of the Final Rule are invalid, upending employers’ understanding of the FFCRA’s leave obligations. State of New York v. U.S. Dept. of Labor, Case No. 20-CV-3020 (Aug. 3, 2020). New York challenged four provisions of the DOL’s Final Rule: (1) the “work-availability” requirement; (2) the definition of “health care provider”; (3) the Final Rule’s intermittent leave provisions; and (4) employee documentation obligations.

“Work Availability Requirement”

The FFCRA provides that employees are eligible for paid leave if they are “unable to work (or telework) due to a need for leave because” of any of the reasons provided for in the FFCRA. The DOL’s Final Rule interpreted this section to exclude employers who “do [] not have work” for employees.  In other words, if the employer had no work for the employee, the employee was not eligible for FFCRA leave.  Many employers relied on this understanding of the FFCRA to “furlough” rather than “terminate” employees. However, the court ruled that the DOL’s limitation was not consistent with the FFCRA’s text, and found that even those employees whose employers had no work for them should have been eligible for FFCRA leave.

Exempt “Health Care Providers”

The FFCRA statute defined “health care provider” narrowly 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.” The DOL’s Final Rule significantly expanded the “health care provider” definition to include “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,” among others. The Final Rule also included in this definition “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 . . .” The DOL’s reasoning for broadly exempting even employees who did not directly provide medical services was the recognition that hospitals and medical centers required other personnel (HR, payroll, security, health and safety) to continue operating to assist in properly responding to and containing the COVID-19 outbreak.

The court found the DOL’s expansion of the FFCRA’s “health care provider” definition was unlawful because it was more expansive than the FFCRA statute’s definition. The court concluded the DOL incorrectly focused on the identity of the employer rather than the duties performed by the employee in expanding the applicability of the health care provider exemption.  The result is that, after the court’s ruling, there is no regulatory definition of “health care provider.”  Thus, health care providers should re-evaluate their current policies on FFCRA leave and consult with experienced employment counsel to determine which individuals will be exempt from FFCRA leave going forward.

Intermittent Use of FFCRA Leave

The FFCRA statute does not address whether leave could be used intermittently. The Final Rule stated that intermittent leave is not available where the employee: is subject to government quarantine or isolation order related to COVID-19; has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; is experiencing symptoms of COVID-19 and are taking leave to obtain a medical diagnosis; is taking care of an individual who either is subject to a quarantine or isolation order or has been advised to self-quarantine; or is experiencing any other substantially similar condition. The DOL justified limiting the availability of intermittent leave in such a manner to prevent employees from returning intermittently to work where they could transmit the virus.

The Final Rule went further and stated that intermittent leave may be taken “only if the Employer and Employee agree.” Although accepting the DOL’s justification for the limitation on the use of intermittent leave for the reasons outlined in the Final Rule, the court concluded the requirement that the employer agree to the use of intermittent leave was not justified.

Documentation for FFCRA Leave

The FFCRA requires employees to provide notice of the need for leave under certain circumstances. Specifically, the EFMLEA provides that, in the case of foreseeable leave, “an employee shall provide the employer with such notice of leave as is practicable.” The EPSLA states that an employee may be required “to follow reasonable notice procedures in order to continue receiving such paid sick time.” The Final Rule adds to these statutory notice obligations by requiring employees to submit “prior to taking [] leave” documentation stating their reason for leave, the duration of the leave and, when relevant, the authority for the isolation or quarantine order.” The court found these additional notice requirements to be more onerous than what the statute required and, thus, unlawful.  Because refusal to provide appropriate documentation was a basis for denying leave, employers should re-evaluate their practice of requiring such documentation before providing leave in light of the court’s Order.

Now What?

The DOL has not indicated as of the time of the publication of this article whether it will appeal the court’s decision.  If it does, it is likely that it will ask to keep the requirements of the Final Rule intact while the appeal is pending.  However, it is unclear whether such a request would be granted.

For now, employers should operate under the premise that the four provisions of the Final Rule discussed in the court’s opinion no longer are in effect. Accordingly, employers should consult legal counsel if presented with a request for paid leave under the FFCRA that previously would have been denied under the Final Rule.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.


Learn more aboutStephen B. Maule
Stephen’s practice includes all aspects of labor and employment law. He assists employers with immigration petitions to the U.S. Citizenship and Immigration Service, including H-1B, TN and permanent residency. He has also represented employers in investigations conducted by the U.S. Immigration and Customs Enforcement.