August 6, 2020

Court Rules on Emergency Leave Provisions | August 5, 2020 | CBIZ, Inc.

The State of New York filed a lawsuit against the Department of Labor (DOL) shortly after the Department issued its regulations to implement the Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFML) provisions.  As a reminder, these temporary emergency leave laws were enacted as part of Families First Coronavirus Response Act (FFCRA).  Briefly, the EPSL provides up to 80 hours of leave; the EFML provides up to 12 weeks of leave

The State of New York challenged the DOL’s authority to issue certain aspects of its regulations, which were finalized on April 6, 2020.  On August 3, 2020, Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York ruled on the matter in New York v. U.S. Dept. of Labor (No. 20-3020 (S.D.N.Y). Aug. 3, 2020).

By way of this Court decision, four aspects of the DOL’s FFCRA regulations are vacated, as follows:

  1. Definition of health care provider;
  2. The condition that work be available for purposes of eligibility for leave (the “but-for” rule);
  3. The requirement that the employer must approve intermittent or reduced scheduled leave; and,
  4. The requirement for employees to provide advanced documentation of the need for leave.

The most significant of these four rules are the definition of health care provider, and the so-called “but for” rule.

As a reminder, the law allows health care providers to be excluded from eligibility for both emergency leave laws if circumstances warrant it.  The DOL regulations define health care provider very broadly as:

  • 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; and any individual employed by an entity that contracts with any of these institutions, employers, or entities to provide services or to maintain the operation of the facility.
  • 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, or treatments.

The Court determined that this definition is far too broad.  Effectively, the Court says that the determination of a health care provider must be based on the nature of the employee’s work, and not the nature of the employer.  As such, any health care provider, such as a hospital or doctor’s office, attempting to preclude its employees from taking otherwise available leave should carefully consider whether the individual asking for leave actually qualifies as a health care provider.  The Court’s opinion notwithstanding, the previously issued FAQ guidance provided by DOL suggests that employers should be judicious when denying leave based on this definition.  This Court opinion takes it to the next step by requiring these health care provider/employers to limit the need for exclusion to only those individuals who have direct health care delivery responsibilities.

With regard to the second matter (the “but-for” rule), the DOL’s regulations and FAQ guidance provide that an individual is only entitled to emergency leave if he/she would be working but for the need to take leave.  The Court determined that this is too broad a reading of the statute and hence, it is vacated.  At this point, employers should not condition eligibility for leave on the availability of work.

With regard to the third matter, the law and regulations allow the use of intermittent leave in certain circumstances.  The Court does not take issue with this; but it does take issue with the requirement that employers approve the employee’s request to take leave on an intermittent or reduced scheduled leave.  Employers should review their policies to ensure that they are modified as appropriate.

The last point taken up by the Court relates to documentation of the need for leave.  Effectively, the Court says that an employer can request such documentation; but it just can’t request documentation prior to commencement of the leave.

At the time of this writing, the DOL has not publicly responded on this Court decision; it is certainly possible that the agency may seek an appeal.  It is also possible that the DOL will reconsider its regulations and sub-regulatory guidance.  In the meantime, employers should exercise caution if any of these issues are relevant to its administration of FFCRA emergency leave requirements. Employers should work closely with their legal counsel to determine how to address specific circumstances.

Accelerated Recovery Resources

Access articles and tools to help your business generate cash, improve leverage, and align & transform as you recover from the pandemic.

COVID-19 Resources

Access all COVID-19 related articles to help your business respond to the pandemic.

Insights in Your Inbox