A recent court decision from the US District Court for the Southern District of New York has called into question the Department of Labor’s (DOL) Final Rule implementing the Families First Coronavirus Response Act (FFCRA) and their subsequent guidance on how it should be applied.

In challenging the Final Rule, the State of New York argued that the Rule, as promulgated, unduly restricted the use of paid leave under the FFCRA. In the August 3, 2020 decision, the Court concluded that several of the provisions in the Final Rule, as drafted, exceeded the DOL’s statutory authority to regulate the use of paid leave under the FFCRA.

Work-Availability Requirement

First, the Court found that the work-availability requirement was limited to only three reasons under the Emergency Paid Sick Leave Act (EPSL). The guidance from the DOL had been that as a precondition for taking leave under the EPSL or the Emergency Family and Medical Leave Act (eFMLA), for any reason, there must be work available for the employee to perform. However, the work availability requirement under the Final Rule was limited to only three reasons: (1) an employee was subject to a quarantine or isolation order, (2) an employee was caring for an individual, and (3) caring for a son or daughter. § 826.20(A)(2)(6)(9). The Court concluded that the DOL cannot expand the work availability requirement outside of what was stated in the Final Rule.

Definition of Health Care Provider

Second, the State of New York argued that the Final Rule’s broad definition of a “health care provider” exceeded the DOL’s authority under the FFCRA. As employers could elect to exclude “healthcare providers” from leave benefits, the Court found that the broad definition had “grave consequence for employees.” In striking down the definition, the Court held that “the Final Rule’s definition is vastly overbroad even if one accepts the agency’s purposivistic approach to interpretation, in that it includes employees whose roles bear no nexus whatsoever to the provision of healthcare services, except the identity of their employers, and who are not even arguably necessary or relevant to the healthcare system’s vitality … The definition cannot stand.”

Intermittent Use of FFCRA Leave

Third, the Court addressed the DOL’s requirement that an employee seeking to use intermittent leave must acquire consent from the employer. The Court concluded that while intermittent leave is properly limited to use for an employee caring for a child due to a school closure or unavailability of a childcare provider due to COVID-19, the employee need not request permission prior to using the intermittent leave. The Court held that “[i]nsofar as it requires employer consent for intermittent leave, then, the Rule is entirely unreasoned…”

Documentation for Taking FFCRA Leave

Lastly, the Court addressed the documentation requirements under the DOL’s Final Rule. The challenge was to the Final Rule’s requirement that employees must submit to their employer, prior to taking leave, documentation indicating their reason for leave, the duration of the requested leave, and, when relevant, the authority for the isolation or quarantine order qualifying them for leave.

In finding that the Final Rule’s documentation requirements imposed a different and more stringent precondition to leave, the Court held “the documentation requirements, to the extent they are a precondition to leave, cannot stand.”

For Nevada employers, this decision comes at a time when use of FFCRA leave is at an all time high. While the DOL may appeal the decision, the Court’s decision to strike down several provisions of the DOL’s Final Rule may impact how employers here in Nevada need to administer FFCRA leave. If you have any questions, please contact us at info@nevadaemployers.org or (775) 329-4241.