Several hours ago, a federal judge in the Southern District of New York eliminated parts of the Department of Labor (“DOL”) Final Rule implementing the Families First Coronavirus Response Act (“FFCRA”).  Emergency Paid Sick Leave (“EPSL”) and Expanded Family and Medical Act leave (“EFMLA”) are benefits provided under the FFCRA. 

               The State of New York, fearing taxable income and therefore tax revenues, brought a lawsuit against the DOL based on the Final Rule.  NY challenged the work availability requirement, the definition of “health care provider,” the intermittent leave requirement and the documentation requirement imposed under the Final Rule.  With one exception, the Court found in favor of NY. 

Work Availability Requirement

               EPSL and EFMLA allow an employee who is unable to work due to the need for leave because of several COVID criteria, including caring for a child whose school has been closed.  The DOL included in its Final Rule an exclusion for employees whose employers do not have work for them.  The Court concluded that eligibility for leave does not mean the inability to work caused solely by a qualifying condition. 

Under the Court’s ruling, the fact that an employer may not have work for the employee because business has diminished, does not prevent the employee from taking EPSL or EFMLA if (s)he otherwise qualifies for leave. 

Definition of Health Care Provider

               The FFCRA allows for the exclusion of health care providers (“HCP”) from EPSL or EFMLA.  The DOL determined that an HCP included anyone employed by a medical office, clinic, hospital or other entity and any person employed with an entity that contracts with any of those businesses.  This is much more expansive than definition of HCP under the FMLA which is a doctor of medicine or osteopathy authorized to practice law. 

               Accordingly, medical entities cannot exclude all of its employees from EPSL or EFMLA leave.  The parameters of an HCP are currently unclear.  However, medical entities will be required to provide the leaves to many more employees. 

Intermittent Leave

               Under the Final Rule, intermittent leave is available only if the employer and employee agree, and only for the reason of child care due to a school closure.  The Court approved the Final Rule to the extent that it prohibits intermittent leave for persons who may be suffering from COVID, or caring for a person with COVID.  Moreover, if the need for leave abates, and the employee has not exhausted EPSL, (s)he can resume leave if another qualifying condition arises. 

               However, the Court did not see any justification for imposing a rule that intermittent leave is permitted for child care only if the employer and employee agree.  This means that the employee can take intermittent leave for this purpose whether or not the employer agrees. 

Documentation

               The EFMLA requires notice as soon as practicable.  The EPSL requires notice after the first workday missed.  After that the employer can require the employee to follow reasonable procedures for documenting leave. 

               The Court struck down the documentation provision of the Final Rule because anything beyond the FFCRA negates what Congress enacted. 

What to Do from Here? 

               We do not know whether the DOL will appeal this ruling.  If this ruling stands, it appears that employees can take EPSL whether or not the employer has sufficient work.  So long as the employee qualifies, (s)he can take the leave. 

Medical businesses will no longer be allowed to prevent some employees from taking EPSL or EFMLA on the basis that they are employees of a health care provider.  Just which employees are not subject to the exemption is unclear. 

There is no requirement for an employee to obtain employer-approval for an EFMLA leave for child care. 

Finally, the employer is limited with respect to documentation it can obtain to justify the employee’s leave. 

The laws, rules and regulations continue to change with respect to COVID.  Employers must exercise extreme caution with respect to every leave an employee takes.  What you did yesterday may not be the appropriate response today! 

 

Doug Larsen wrote this article.  He can be reached at [email protected] or 559.256.5000.