New York Federal Judge Strikes Down Several Key Parts of COVID-19 Paid Leave Regulation Including The Definition of “Health Care Provider”

Written by: Jacqueline Voronov, Esq. and Jeffrey M. Daitz, Esq.

In a very pro-employee ruling, the U.S. District Court for the Southern District of New York struck down four (4) key provisions of the U.S. Department of Labor’s (“DOL”) regulations implementing the paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”).  The August 3, 2020 ruling came down in a lawsuit filed by the State of New York, (State of New York v. U.S. Department of Labor, et al., No. 20-CV-3020 (S.D.N.Y. Aug. 3, 2020)), which argued that the regulations unlawfully narrow the scope of leave available to workers.

Specifically, the Court held that the DOL exceeded its authority by:

1.  Declaring that an employer is not obligated to provide FFCRA leave to an employee if the employer does not otherwise have work for the employee;

2.  Broadly defining “health care provider” to include virtually all employees of employers that provide health care services;

3.  Allowing employees to use intermittent leave in certain cases only if their employer agrees; and,

4.  Requiring employees to provide documentation “prior to taking leave” indicating their reason for leave, the duration of the requested leave, and, where relevant, the authority for the isolation or quarantine order qualifying them for leave.

Background

As we previously reported, the FFCRA has two (2) main provisions: the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA).  The EFMLEA requires that employers with less than 500 employees provide up to 12 weeks of leave for employees unable to work or telework because they have to care for their child.

The EPSLA requires employers with less than 500 employees to provide employees up to 80 hours of paid sick time to be used for any of  six qualifying reasons. These qualifying reasons are (1) the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) the employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or the employee is caring for an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (5) the employee is caring for his or her son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or (6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Congress charged the DOL with administering the statute and on April 1, 2020, the DOL released a final, temporary rule interpreting both provisions of the FFCRA.  Two (2) weeks later, the State of New York brought suit and challenged the DOL’s final rule, claiming that several features of the rule exceeded the agency’s authority under the statute and are, thus, invalid.

The Work-Availability Requirement

The Court first addressed the DOL’s “work-availability requirement.” The DOL final rule’s work-availability requirement “is hugely consequential for the employees and employers covered by the FFCRA, because the COVID-19 crisis has occasioned the temporary shutdown and slowdown of countless businesses nationwide, causing, in turn, a decrease in work immediately available for employees who otherwise remain formally employed,” the Court explained.

As noted, EPSLA grants paid leave to employees who are “unable to work (or telework) due to a need for leave because” of any of the six COVID-19-related criteria described above, while EFMLEA expands paid leave under FMLA to include leave necessary to take care of a child due to school or day care closure. The DOL’s final rule implementing each of these provisions, however, excludes from these benefits employees whose employers otherwise “do[] not have work” for them.

The Court found the work-availability requirement was unreasonable and did not reflect “a reasoned approach to the meaning of the leave requirements.”  Accordingly, the Court held  the work-availability requirement is invalid.  In other words- FFCRA benefits are available even when work isn’t (i.e., during furloughs).

Definition of “Health Care Providers”

The paid FMLA and paid sick leave provisions of the FFCRA both say that employers of “health care providers” can decide to not allow their employees to take such leave.  The DOL defined the term “health care provider” broadly to include any of the following persons:

• Employees who work “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, nursing facility, retirement facility, nursing home, home health care provider,”
• Employees who work at “any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”
• Employees who work for an entity who “contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.”
• Employees who work for entities providing “medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.”
• Employees “that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”

The Court struck down the DOL’s definition as overly expansive and criticized the DOL’s definition for relying “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.”  Highlighting that “an English professor, librarian or cafeteria manager at a university with a medical school would all be ‘health care providers’ under the rule,” the Court held that the proper analysis is “at least a minimally role-specific determination” that the “skills, role, duties, or capabilities of a class of employees” render its members “capable of providing healthcare services,” before they are categorically excluded from FFCRA paid leave benefits.

Intermittent Leave

The DOL regulations allow leave to be taken intermittently but only with employer consent, and, even then, only for a subset of qualifying conditions.  Specifically, only an employee who is caring for his or her son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable due to COVID-19 precautions (qualifying reason #5 above) may be permitted to take intermittent leave. The conditions for which intermittent leave is entirely barred are those which correlate with a higher risk of viral infection (i.e., qualifying reasons #1-4 and 6).

While the Court held that limiting intermittent leave to only certain categories of employees affected by COVID-19 was permissible, the Court determined that requiring employer consent for such leave was “entirely unreasoned” and, therefore, invalid.

Documentation Requirements

Finally, the Court addressed that final rule’s requirement that, prior to taking leave, employees provide their employer with documentation of the need for leave, the duration of the leave, and any isolation or quarantine order that is the basis of the leave.

The FFCRA provides that, with respect to EFMLEA leave, “In any case where the necessity for [leave] is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.” Similarly, EPSLA provides that “[a]fter the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.”

Notably, this scheme does not require the worker to tell the employer why or how long he or she will need leave as set forth in the DOL’s final rule.  The Court held that the requirement that such documentation be provided prior to taking the leave was invalid because it was inconsistent with and more stringent than the statute’s existing notice provisions.

The Takeaway

For employers grappling with pandemic-related shutdowns or reductions in force, this decision undoubtedly creates added difficulty and uncertainty.  It also requires healthcare employers to go back and reexamine whether they must provide paid leave to certain employees that were previously excluded from FFCRA benefits based upon the “health care provider” exemption. Covered employers are strongly encouraged to consult with their legal counsel regarding the implications of this ruling when employee leave requests are sought.

Visit our COVID-19 Litigation Resource Center for more alerts on the many areas of the law impacted by the pandemic. Hall Booth Smith, P.C. attorneys are available to answer any questions you may have on this or other employment law issues.

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