August 7, 2020

Making Employers Sick – FFCRA Regulations Invalidated by Federal Court

On Tuesday, August 4, 2020, a New York federal judge issued a surprising and significant ruling that invalidated several key provisions of the Department of Labor (“DOL”) rules regulating the Families First Coronavirus Response Act (“FFCRA”), likely resulting in more workers being eligible to take paid leave. In addition to re-shaping the fundamental employment laws of the pandemic, the ruling also creates uncertainty for employers reviewing prior leave decisions and looking ahead to return to school and its impact on working parents. Although the judge did not specify if the ruling applies only in New York, the rationale behind the decision can easily be adopted by other federal courts expanding the ruling’s impact and potentially further complicating compliance.

The Families First Coronavirus Response Act.

By way of background, on April 1, 2020, the FFCRA came into effect and required employers with fewer than 500 employees to provide paid leave to employees who are “unable to work (or telework) due to a need for leave because” of any of six coronavirus-related reasons, including up to 12 weeks of paid leave to care for a child due to pandemic-related unavailability of childcare. The FFCRA also provided an exemption of “health care providers” and allowed the DOL to issue regulations for the administration of leave under FFCRA as well as regulations to exclude certain health care providers from the FFCRA’s definition of “employee.”

The DOL subsequently issued the FFCRA’s regulations as a temporary rule, and several legal challenges have followed with this decision as the first major invalidation to date. The ruling invalidated the following provisions of the FFCRA:

Work Availability Requirement

The main features of the FFCRA are the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). The statutory language of the EPSLA requires covered employers to provide paid sick leave to employees who are “unable to work (or telework) due to a need for leave because” of one of the following qualifying reasons:

  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 related to COVID-19;
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. The employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. The employee is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
  6. The employee is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.

The EFMLEA similarly applies to employees who are unable to work (or telework) in order to care for a son or daughter when the need is related to a public health emergency.

Prior to this ruling, the regulations promulgated by the DOL imposed a work-availability requirement for three of the six qualifying reasons such that leave was not required to be provided to an employee for whom there was no work when the leave was sought for reasons 1 (quarantine or isolation order); 4 (caring for an individual subject to quarantine) or 5 (caring for a child). The Court rejected this requirement as ambiguous and held that the DOL’s differing treatment of the six qualifying reasons was contrary to the language of the statute and not the result of “reason decision-making.”

As a result, employers may owe leave to employees even if their businesses have temporarily closed or ceased operations because of a Federal, State or local order and should consult with employment counsel to assess their current situation.

Definition of “Health Care Provider”

The Court rejected the DOL’s use of an employer-based definition rather than an employee-based definition. Specifically, the judge noted that the FFCRA required DOL to specify the kinds of employees, not the kinds of employers, that may be defined as “health care providers.” DOL’s approach resulted in the definition being overly broad and wrongfully exempting too many workers whose connection to healthcare is too attenuated. The judge then highlighted that, as admitted by the DOL, under the former rule “an English professor, librarian, or cafeteria manager at a university with a medical school” would be considered “health care providers.” The judge held that the determination of a health care provider must instead be based on whether the worker is capable of providing health care services.

Employers who were relying on the broad definition of “health care provider” must re-assess their leave decisions and revise any policies based on that now invalidated definition.

Supporting Documentation for Leave

The Court also struck down the regulation’s requirement that employees provide employers with supporting documentation as a prerequisite for taking leave. Employees were required to submit, prior to taking leave, documentation of the reason for the leave, duration of the leave, and proof of a qualifying isolation or quarantine order where appropriate.

The Court found that this precondition to leave is contrary to the FFCRA’s notice provisions and struck down the regulation. Employers should revise any policies and procedures accordingly, and if employers wish to gather applicable documentation, it should be done only after the requested leave has commenced.

Intermittent Leave

Under the now-partially invalidated FFCRA, an employee seeking to take EFMLEA or EPSLA intermittently was required to reach an agreement with her employer and could only take intermittent leave for a subset of qualifying conditions. The DOL regulations prohibit intermittent leave for reasons that would present a high risk of viral infection such as: (a) when an employee is subject to government quarantine or isolation order related to COVID-19; (b) has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; (c) is experiencing symptoms of COVID-19 and is taking leave to obtain a medical diagnosis; (d) is taking care of an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; or (e) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services. Employees however could utilize intermittent leave to care for their child if the child’s school or place of care has been closed or the child care provider is unavailable due to COVID-19 related reason, but only if they obtained their employer’s consent.

The ruling rejected the need for an employer’s consent, but maintained the restrictions on intermittent leave for reasons implicating public health considerations. The Court found DOL failed to rationalize why employer consent is required and determined that such a requirement was unreasoned.

This is arguably the most critical aspect of the Court’s decision. With the debate regarding school reopening raging around the country as the virus continues to surge, the burden will soon fall to employers to manage and balance the needs of their business and the needs of working parents. Under this ruling, employees can take intermittent leave if their child’s school is closed or if child care is unavailable and employer consent is not a prerequisite to intermittent leave. Employers must review and revise their policies and begin to plan their response to working parents needing accommodations in the fall.

Our employment practice group has experience in guiding employers through the maze of Federal, State, and local leave laws and experience in advising employers how to address employees requesting changes to their work and schedule to accommodate child care needs.

If you have questions about this about this article, please contact Megan K. Balne at 856.355.2936 or or Michael G. Greenfield at 856.355.2931 or