Southern District of New York Judge Strikes Down Four Regulations Under the Families First Coronavirus Response Act

A federal court has struck down four regulations issued by the United States Department of Labor (DOL) that limited paid leave entitlements under the Families First Coronavirus Response Act (FFCRA).

In an opinion and order written by District Judge J. Paul Oetken, issued August 3, 2020, the United States District Court for the Southern District of New York found that the DOL exceeded its authority by (1) determining that employees were not entitled to paid leave if the employer determined no work was available; (2) defining "health care provider" broadly, resulting in the exclusion of workers otherwise entitled to paid leave; (3) requiring an employer’s consent before a worker could take intermittent leave; and (4) requiring workers to provide documentation prior to taking leave.

The court’s ruling could have a significant impact on how FFCRA leave is administered in New York.

The FFCRA, which became effective April 1, 2020, provides eligible employees paid and unpaid leave for up to 12 weeks for enumerated circumstances related to COVID-19, which include leave to care for a child under the age of 18 whose school, place of care, or child care is closed due to a COVID-19-related reason.

First, with regard to the FFCRA regulation requiring there to be work available, the DOL had taken the position that employees were not entitled to paid leave if work was otherwise not available (e.g., if employees were subject to mandatory stay-at-home orders, furloughed, or were out of work due to their employer's place of business closing). The court, however, invalidated the DOL's "work availability" requirement.

Second, the court's order narrowed the scope of the "health care provider" exemption, which allows the employer of an employee who is defined as a "health care provider" to exclude the employee from taking leave under the FFCRA. The DOL’s regulation defines a "health care provider" more broadly than the Family and Medical Leave Act's (FMLA) definition of "health care provider," which is limited to "a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate)" or "any other person determined by the Secretary to be capable of providing health care services." The court recognized that although the DOL has the authority to expand the definition of the term "health care provider" beyond what is set forth in the FMLA, the DOL's expanded definition lacked "at least a minimally role-specific determination" with respect to the application of the exemption.

Third, the court vacated the requirement that an employer must consent to intermittent leave. The FFCRA regulation permits employees to take leave intermittently only if the employer and employee agree, and even then, only for a qualifying reason and where there is a minimal risk that the employee will spread COVID-19 to other employees. Although the court upheld the limitation on the reasons for which employees may take intermittent leave, it ruled that employers must grant intermittent leave where there is not a risk of spreading COVID-19.

Finally, the court found that the regulation requiring an employee to submit documentation concerning the need for leave as a condition precedent to taking FFCRA leave was inconsistent with the notice provisions contained in the FFCRA. The court upheld the requirement regarding the contents of the documentation but voided the portion of the provision that required employees to submit the documentation before taking the leave.

Employers should take notice of this ruling's impact on their organization and contact Laura L. Spring, Esq. at CCB Law for more information.