A recent New York federal judge’s ruling that the Department of Labor (DOL) exceeded its authority in four areas of the paid leave requirements of the Families First Coronavirus Response Act (FFCRA) has created further uncertainty.  The ruling addressed the DOL’s Final Rules interpreting the leaves afforded by the FFCRA:  (1) the “work-availability” requirement which allows employers to deny FFCRA benefits when they “do … not have work”; (2) the DOL’s interpretation of the law’s exclusion for health care providers; (3) the Final Rule’s limitations on taking intermittent leave, which required employer consent; and (4) the Final Rule’s documentation requirements, requiring employees provide documentation of the need for the leave as a precondition. The U.S. District Court in the Southern District of New York found that the DOL exceeded its authority, in part, on all four issues.

Touting the statute’s general purpose, the Court took umbrage at the DOL’s Final Rule of work-availability, which allowed employers to reject an employee’s request for FFCRA leave if the employer had no work for the employee reasoning that denial was justified “because the employee would be unable to work even if he or she” did not have a qualifying condition. Finding the DOL’s work-availability requirement was “entirely unreasoned,” the Court struck the DOL’s work-availability requirement as written. As a practical matter, this ruling is that employees who cannot work or telework because of an FFCRA-covered reason may take FFCRA leave even when the employer does not have available work. When an employer places an employee on a leave of absence (including as a result of a government shutdown, stay-at-home, or shelter-in-place order), the employee will be entitled to paid leave under the EFMLA and/or EPSL provisions of the Act. The court did not address whether the unavailability of work requirement is permissible in a temporary layoff or furlough situation, but the answer is likely to turn on whether the individual is still an employee.

The Court also struck the DOL’s regulations limiting applicability to an overbroad definition of “health care providers.” In finding the definition exceeded the DOL’s authority, and striking the entire definition, the Court offered no replacement. The practical effect of the Court’s decision is that employers must still to follow the FMLA’s existing definition of “health care provider,” which is limited to the following: doctors, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers, physician assistants, Christian Science practitioners, “[a]NY health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits,” or a “health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.”  Thus, lower-level, direct care providers (e.g., registered nurses, medical technicians, and certified nursing assistants) and employees working for health care providers whose functions are not directly related to the provision of such care (e.g., receptionists, maintenance, and janitorial employees) are now entitled to leave under the EFMLA and EPSL provisions of the Act. Health care employers previously relying on the DOL’s broader definition to exclude these lower level employees may want to retroactively grant FFCRA leave and hereafter, SHOULD grant FFCRA leave requests by these employees.

Next, in addressing the DOL’s Final Rule on intermittent leave, requiring employer consent, attacking the DOL’s proffered rationale for requiring employer consent for intermittent leave, the Court ruled this provision too exceeded the DOL’s authority and struck the same. The practical effect is that employer approval is no longer required when an employee takes certain FFCRA leave intermittently. For example, when a child’s school is closed or childcare is otherwise unavailable, the employee may take leave under the EFMLA and EPSL on an intermittent basis without prior approval from the employer. In addition, if an employee is teleworking, the employee may take leave under the EPSLA on an intermittent basis for illness-related reasons, since there is no risk of exposing others in the workplace.

Finally, the Court found that the DOL’s documentation requirements requiring the employee provide the employer notice prior to taking leave were inconsistent with the statute. The Court found the DOL exceeded its authority requiring documentation as a precondition to FFCRA leave and struck this requirement. The practical effect is that employers can only require employees to submit documentation before they take leave if the need for leave is foreseeable (e.g., school closure or the unavailability of childcare). However, when the leave is not foreseeable, such as when an employee is ill, the employee may provide documentation after commencing the leave.

This ruling leaves the much uncertainty for employers’ obligations to provide paid leaves under the FFCRA. As the opinion is silent as to the breadth of its application, it is unclear whether the ruling applies outside of New York. The DOL can appeal the ruling to the Second Circuit Court of Appeals, and/or promulgate new regulations to backfill the gaping holes left by the Court’s ruling. Most critical, the Court’s decision leaves a void in the FFCRA of a working definition of “health care provider,” leaving healthcare providers with significant uncertainty as to the application of the FFCRA to its workers. With this uncertainty, we believe it is prudent that all employers, most particularly healthcare providers, proceed cautiously and err on the side of granting FFCRA leave which may otherwise have been excluded under the four attacked bases. Although previous denials of FFCRA leave requests relying on the DOL’s Final Rules should not be penalized if the employer was acting in good faith and promptly remedies the violation, following this ruling, employers denying an employee FFCRA leave on any of the above four bases  may run afoul of the Act, creating significant exposure. The DOL is now actively enforcing the Act for violations retroactive to its effective date. Penalties can be significant.

We will continue to monitor these issues and until clarity is issued, employers should think twice before denying FFCRA leave under any of these four provisions.