NY Sues U.S. Dept of Labor to Invalidate Portions of the Rule Implementing the Emergency Leave Provisions of the FFCRA for Exceeding the Language and Purpose of the Statute

Contributed by Paula Lopez, April 20, 2020

Congress passed the Families First Coronavirus Response Act (FFCRA) on March 18, 2020, which contains two key provisions touted by the government as providing workers dealing with COVID-19 financial and employment protections so that they can care for themselves and their families. On April 1, 2020, the U.S. Department of Labor (DOL) issued a rule intended to provide guidance for the implementation of the FFCRA’s emergency paid sick leave act (EPSLA) and emergency family and medical leave expansion act (EFMLEA) provisions of the FFCRA (DOL Rule). However, the DOL Rule significantly narrows the number of employees eligible to receive benefits under the law by, inter alia, permitting employers to disallow paid sick leave if the employer decides no work is available, expanding the definition of “health care provider,” a category of workers exempted from coverage under the FFCRA, and allowing employers to deny leave if an employee fails to provide documentation required under two federal agencies before taking leave. As a result, on April 14, 2020, New York’s Attorney General, Letitia James, filed a lawsuit against the DOL in the Southern District of New York, challenging the parts of the DOL Rule that impose eligibility restrictions on the basis that the the DOL has exceeded the authority granted to it by Congress by promulgating a rule that violates the statutory language and the intent of the FFCRA. Simultaneously with the filing of the lawsuit, the Attorney General is moving for summary judgment, seeking to the have the court sever and vacate the challenged portions of the DOL Rule.

The Complaint alleges that the DOL Rule unlawfully modifies the EFMLEA and EPSLA, as follows:

  • Under the FFCRA, “the EPSLA requires an employer to provide paid sick time to an employee who is unable to work or telework if the employee meets one of six qualifying conditions, including that the employee (1) “is subject to a Federal, State, or local quarantine or isolation order related to COVID-19”; (2) “has been advised by a health care professional to self-quarantine due to concerns related to COVID-19”; (3) “is experiencing symptoms of COVID-19 and seeking a medical diagnosis”; (4) is caring for an individual subject to a quarantine or isolation order by the government or a health care professional; (5) is caring for a son or daughter whose school or place of care is closed, or whose child care provider is unavailable because of COVID-19; or (6) “is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.” However the DOL Rule allows an employer, in its sole discretion, to deny paid leave benefits to an otherwise eligible employee, under three of the six qualifying conditions because the employer does not have work for the employee. The three qualifying conditions where this exclusion is available to an employer are (i) where the employee seeks leave because he is subject to a governmental quarantine or isolation order, (2) the employee seeks leave because he is caring for an individual subject to a governmental or medical quarantine order, or (3) the employee seeks leave to care for a son or daughter whose school or place of care has closed. The Complaint argues that this work availability requirement affords employers a right to deny leave, which is not supported by the language of the FFCRA.
  • Under the FFCRA, “the EFMLEA provides that an employer of “an employee who is a health care provider or emergency responder may elect to exclude such employee” from the emergency family leave benefits provided by the Act.” The FFCRA states that the term “health care provider” has the same meaning given under the Family Medical Leave Act, which defines “health care provider” 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 Complaint alleges that the DOL Rule improperly adopts a much broader and expansive definition of “health care provider” to include the following employees:
    1. “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, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity[,] [including] any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions,” 85 Fed. Reg. at 19,351 (§ 826.30(c)(1)(i));
    2. “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,” id. (§ 826.30(c)(1)(ii)); and
    3. “anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, r treatments,” id. (§ 826.30(c)(1)(ii)).

The Complaint alleges that by providing such an expansive definition of “health care provider”, the DOL Rule unlawfully expands the definition so as to exclude tangential workers, never intended to be excluded from coverage under the health care provider exception. The examples of potentially excluded workers noted in the Complaint include “teaching assistant or librarian at a university; employees who manage the dining hall or information technology services at a medical school; the cashier at a hospital gift shop; and anyone employed by any contractor to any entity listed in the Final Rule, including all employees of a payroll processing firm or vending-machine resupplier.”

  • The Complaint also alleges that the DOL Rule imposing restrictions on an employee from taking paid sick leave or emergency family leave intermittently is not supported by the language of the FFCRA. Specifically, the Complaint challenges the parts of the rule that “allows intermittent leave only for employees who are taking emergency family leave or who are taking paid sick leave to care for a child whose school is closed” and only “with the approval of their employer”(§ 826.50(b)(1)). The DOL Rule also prohibits intermittent leave for employees reporting to a work-site and taking paid sick leave or emergency family leave for any reason other than to care for a child whose school is closed. The Complaint argues that these restrictions on intermittent leave are not supported by the text of the FFCRA, which contemplates that employees may take leave intermittently in establishing that employers can claim the tax credits to cover the leave on a quarterly basis.
  • According to the Complaint, “[t]he Final Rule provides that before any employee may take emergency family leave or paid sick leave, the employee “is required to provide the Employer documentation containing the following information . . . (1) Employee’s name; (2) Date(s) for which leave is requested; (3) Qualifying reason for the leave; and (4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.” 85 Fed. Reg. at 19,355 (§ 826.100(a)); see also id. at 19,339 (signed statement from employee required). The Complaint alleges that there is no statutory basis for the documentation requirements imposed by the DOL Rule since the FFCRA recognizes the emergency nature of the leave, and further argues that the requirements are contrary to Congress’s intent because they will result in many eligible employees being denied leave.

The DOL has not yet responded to the allegations in the Complaint. However, given the remedial nature of the FFCRA and the congressional intent in passing the law, there is a basis to the New York Attorney General’s challenges to the DOL Rule, particularly those portions of the rule related to the “work available” component created by the rule, the expansive definition of “health care provider,” and the limitations on the availability of intermittent leave. The documentation requirements imposed by the DOL Rule, however, can be reconciled with the language of the FFCRA since there needs to be a method for employers to support their claim for a tax credit to cover the costs of the leave, and is therefore more likely to survive scrutiny.

Employers should follow this case closely to ensure that any policies they implement for EFMLEA and EPSLA leave are consistent with any changes to the DOL Rule.


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