A few months ago, I wrote here about a Families First Cornavirus Response Act lawsuit.
But, not just any old FFCRA lawsuit.
Rather, the State of New York sued the U.S. Department of Labor in federal court to challenge the DOL’s interpretation of the FFCRAbecause it “unlawfully narrows workers’ eligibility for emergency family leave and paid sick leave guaranteed by the [FFCRA].”
You can find a copy of the complaint here.
Specifically, the New York Attorney General had beef with four aspects of the DOL’s Final Rule issued on April 1, 2020:
- No paid sick and emergency family leaves to otherwise eligible employees if the employer determines—for any reason—that the employer does not have work for the employee;
- The broad definition of “health care provider “;
- Requiring employer consent for paid sick or emergency family leaves intermittently; and
- Conditioning an employee’s eligibility for paid sick leave or emergency family leave on the employee first providing documentation to the employer.
Yesterday, the State of New York hit a grand slam when a federal judge ruled that the DOL had overstepped in each of these four areas.
And, now, I’m going to break it down for you in plain English.
The work-availability requirement.
In its Final Rule, the DOL says that employees cannot get FFCRA paid sick leave benefits if their employers have do not have work for them. The State of New York argued that the DOL’s position was not consistent with the actual language if the FFCRA. And the federal court agreed with New York and struck it.
Practical impact: An employee can collect FFCRA leave for a qualifying reason while on furlough status.
Definition of “Health Care Provider”
The FFCRA permits an employer to exclude a “health care provider” from getting FFCRA benefits. In its Final Rule, the DOL has a hecka-broad definition of “health care provider.” For example, the FFCRA would not cover an English professor, librarian, or cafeteria manager employed at a university with a medical school. The State of New York argued that the DOL’s position was too broad and exceeded its authority under the FFCRA. Once again, the federal court agreed with New York.
Practical impact: More become-FFCRA eligible. This much narrower definition of “health care provider” will control going forward. Think: doctors and others who practice medicine.
Intermittent Leave
The FFCRA doesn’t say anything about taking intermittent leave under the FFCRA. In its Final Rule, the DOL filled the gap by creating a few intermittent leave rules. Among them, the employee would need employer permission to take intermittent leave while teleworking. Additionally, an employee that is working onsite may only take intermittent leave (with employer permission) to care for a child whose school or place of care is closed, or child care provider is unavailable. Once again, the State of New York argued that the DOL had exceeded its authority. The federal court agreed with New York, but drew the line at allowing employees to take intermittent leave from work in situations that could risk the health of others.
Practical impact: Employees can take intermittent leave for any FFCRA qualifying reason while teleworking. An employee that is working onsite may only take intermittent leave to care for a child whose school or place of care is closed, or child care provider is unavailable. Either way, the employee doesn’t need employer permission.
Documentation requirements
In its Final Rule, the DOL requires employees to submit specific documentation to their employer to support the need for leave before the leave begins. New York argued that this requirement is inconsistent with the FFCRA. Once again, the court sided with New York.
Practical impact: Employees don’t need to provide documentation as a precondition to taking FFCRA leave. However, after providing verbal notice, the paperwork can follow.
Hold up, Eric! My business doesn’t operate in New York. Does this decision impact us?
No. Well, not yet, it doesn’t.
For now, this decision impacts only businesses in the Southern District of New York. If the DOL doesn’t appeal, we’ll have one set of FFCRA rules for the counties of New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan, and another set for everyone else. That doesn’t make much sense.
So, another option is for the DOL to appeal this decision to the Second Circuit Court of Appeals. Now, we’re talking about the states of New York, Connecticut, and Vermont. If the Second Circuit sides with the DOL, then we’re back to the status quo. Otherwise, the divide deepens.
The third option is that the DOL revises its rules for everyone consistent with the SDNY decision to keep everything uniform across the country.
Best guess: DOL chooses door number two, and revises the FFCRA rules if the Second Circuit affirms the lower court. Whatever happens, I’ll keep you updated.