In response to the novel coronavirus pandemic, Congress enacted the Families First Coronavirus Response Act (FFCRA). Among other things, this law provides employees impacted by COVID-19 with paid emergency sick leave and paid emergency family leave in certain circumstances. The portion of the FFCRA that relates to paid emergency sick leave is referred to as the Emergency Paid Sick Leave Act (EPSLA) and the portion that relates to paid emergency family leave is known as the Emergency Family and Medical Leave Expansion Act (EFMLEA).

The United States Department of Labor (USDOL) was charged with administering the law. In April 2020, USDOL enacted a final rule which set parameters about how the FFCRA would be implemented (Final Rule). In short order, the State of New York (NYS) brought a lawsuit against USDOL in which it claimed that the Final Rule was improper in several ways.

Just yesterday, the United States District Court for the Southern District of New York issued a ruling that largely agreed with NYS’s position and struck down critical parts of the Final Rule. Although the ruling is likely to be appealed, employers should familiarize themselves with the Court’s ruling, as it significantly affects employees’ entitlement to paid leave in certain situations.

This blog post will summarize the ruling’s most important takeaways, including that: (1) employers may not deny employees paid leave on the grounds that the employer does not have work for the employee to do; (2) the Final Rule’s definition of “health care provider” has been overturned, such that employers must exercise caution in claiming to exempt an employee from the FFCRA’s paid leave benefits because that employee may be a “health care provider”; (3) employers may not refuse to permit an employee to take intermittent leave in order to care for a child; and (4) employers cannot insist that employees submit documentation before taking leave, and must instead follow the provisions of the FFCRA relating to when an employee’s request for leave must be made.

EPSLA and EFMLEA Generally

By way of background, EFMLEA requires employers with less than 500 employees to provide twelve weeks of job-protected leave to any employee: (1) who has been on payroll for at least thirty calendar days; (2) is unable to work (or work remotely); (3) due to the need to care for a child under age 18 if school is closed or a childcare provider is unavailable; (4) as a result of an emergency declared by a federal, state or local government that is related to COVID-19.

The first ten days of EFMLEA leave are unpaid, although an employee may choose to use accrued paid time off (or paid leave under EPSLA, if available) during such time. During the remaining period of leave, an employee must be paid two-thirds of his or her regular rate of pay for the number of hours the employee would usually be scheduled to work, up to $200 per day and $10,000 for the entire period of leave.

EPSLA requires employers with less than 500 employees to provide paid sick leave to any employee who is unable to work (or work remotely) when 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 provider to self-quarantine due to concerns relating to COVID-19; (3) has symptoms of COVID-19 and is seeking a diagnosis; (4) is caring for a person who is subject to a federal, state or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine due to concerns relating to COVID-19; (5) is caring for a son or daughter if the child’s school or place of care has been closed, or his or her child care provider is unavailable, due to COVID-19 precautions; or (6) is experiencing any other substantially similar health condition as specified by the Secretary of Health and Human Services. This leave is available to all employees regardless of the duration of their employment.

Full-time employees must be provided with 80 hours of paid sick leave. Part-time employees must be provided with an amount of paid sick leave that is equal to the average number of hours that the employee works in a two-week period.

The amount to be paid depends on the reason for the employee’s leave. In the case of reasons (1), (2) and (3) above, the employee is to be paid at the regular rate of pay, except that paid sick time may not exceed $511 per day, and $5,110 in total. In the case of reasons (4), (5) and (6) above, the employee is paid at two-thirds of the regular rate of pay, except that paid sick time may not exceed $200 per day, and $2,000 in total.

The Work Availability Requirement

Both EPSLA and EFMLEA provide for paid leave only where an employee is “unable to work (or telework) for a qualifying reason.” However, the Final Rule provides that an employer does not have to provide paid leave to an employee who cannot work (or work remotely) if the employer “does not have work” for the employee to do in the first instance.

What exactly does this mean? The Final Rule provides the following example: if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, a cashier of the business who is subject to a stay-at-home order may not take paid sick leave. That is because the lack of work is due to the downturn in business, not the cashier’s inability to leave home.

The Court held that the Final Rule’s work availability requirement is invalid because it limits the availability of paid leave under EPSLA and EFMLEA in an “enormously consequential way” without a sufficient reason for such a “monumental policy decision.” Thus, in the above example, the coffee shop employee would presumably be entitled to paid leave even though her employer does not have work for her to do.

Exemption for Health Care Providers

Both EPSLA and EFMLEA state that employers can choose to exclude “health care providers” from eligibility for leave benefits. The Final Rule defines the term “health care provider” very broadly so as to include:

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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions,

as well as

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, [and] 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 struck down this definition of “health care provider,” reasoning that it is over broad because it hinges on the nature of the services the employer provides rather than the services provided by the employee. For example, the Court noted that, under the Final Rule, an English professor would be considered a health care provider if he or she works for a University with a medical school.

With this portion of the rule having been invalidated, who qualifies as a “health care provider” is unclear. For now, the definition of that term under the Family and Medical Leave Act of 1993 may be instructive.

Intermittent Leave

The Final Rule allows employees to take paid leave under EMFLEA or EPSLA intermittently, but only if the employer agrees to allow it and the employee is taking leave for a reason that involves “a minimal risk that the employee will spread COVID-19 to other employees.” In short, an employee is only eligible for intermittent leave where the employee is utilizing leave to care for a child because school is closed or a childcare provider is unavailable. In the case of all other EPSLA qualifying reasons, according to the Final Rule, the employee is at too great a risk of spreading COVID-19 to be permitted to return to work intermittently.

The Court upheld USDOL’s prohibition on the use of intermittent leave where an employee is at risk of spreading COVID-19 to other employees. However, the Court held that where intermittent leave is available (i.e., where an employee requires leave to care for a child), the Final Rule is unreasonable to the extent it allows employers to refuse to agree to provide intermittent leave.

Documentation Requirements

The Final Rule requires employees to submit certain documentation to their employers before taking leave under EFMLEA or EPSLA. However, the statutes themselves say something different. EFMLEA provides that, where the need for leave is foreseeable, the employee must provide the employer “with such notice of leave as is practicable.” EPSLA, on the other hand, states that “[a]fter the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.”

Because of the conflict between the statutes and the Final Rule, the Court held that the documentation requirement is invalid to the extent it requires documentation to be submitted before leave is taken.

Conclusion

It is critical that all New York employers be aware of the ways that the Court’s decision will change how they evaluate employees’ requests for paid emergency sick or family leave. And, because the Court’s decision may be appealed and/or USDOL may go back to the drawing board and engage in additional rule-making, employers must be on the look out for additional developments.

If you have any questions, please contact Jessica M. Baquet, the Chair of our Labor and Employment Practice Group, at (516) 393-8292 or jbaquet@jaspanllp.com.