Who’s The Boss? DOL Repudiates The Court’s Ruling By Issuing New COVID-19 Leave Guidance
As reported by this blog Court Strikes Down DOL Interpretations of FFCRA on August 3, 2020, the United Stated District Court for the Southern District of New York issued a decision and order on the plaintiff’s motion for summary judgment in State of New York v. United States Department of Labor, 20-CV-3020, holding that several requirements of the United States Department of Labor’s (“DOL”) temporary rule interpreting the Families First Coronavirus Relief Act (“FFCRA”) were inconsistent with the FFCRA in several respects. The DOL recognized the immediate need for guidance noting that the FFCRA’s paid sick leave and expanded family and medical leave requirements are set to expire on December 31, 2020. So, in direct response to the Court’s ruling, the DOL issued a new temporary rule, effective as of September 16, 2020.
At its core, the new guidance is largely a repudiation of the Court’s ruling concerning four aspects of the DOL’s prior guidance: (i) the Work-Availability Requirement; (ii) the “Health Care Provider” Definition; (iii) The Intermittent Leave Prohibition; and (iv) the Documentation Requirement. As noted in our previous post, these four requirements come into play when an employee seeks to take paid leave from work under the FFCRA because of one or more of six qualifying conditions relating the COVID-19 pandemic, such as a self-quarantine order or the need to care for someone subject to a quarantine order: Each of the four requirements in the DOL’s prior rule arguably made it more difficult for employees to avail themselves of the relief available under the FFCRA. Thus, the Court’s August 3rd ruling striking down these provisions as violative of the FFCRA was arguably an employee-friendly decision. The new DOL guidelines largely reaffirm its more employer-friendly position.
The chart below recaps the prior DOL provisions at issue and the Court’s August 3rd rulings on those provisions, and summarizes the new DOL guidance issued in direct response to the Court’s holdings.
DOL Requirements at Issue
The Court’s 8/3/20 Holding
New DOL Guidance – Effective 9/16/20
|Work-Availability Requirement: Excludes employees from the FFRCA’s benefits if employers do not have work for them, even if employees satisfy any of the conditions necessary to obtain such benefits. Applies only to three of the six qualifying conditions.||DOL’s rule requiring employees to have work available from their employer in order to take paid leave violated the FFCRA. The FFRCA was ambiguous as to whether a qualifying condition (related to the pandemic) had to be the only reason that an employee was unable to work in order to benefit from any relief afforded by the FFRCA.||Paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave. The guidance also clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave, not just three qualifying conditions.|
|The Health Care Provider Definition: The DOL’s definition of “Health Care Provider” was very broad allowing employers to exclude from the FFRCA employees who are employed by health care providers but provide no health care services, such as an English professor university with a medical school.||This broad definition violated the FFCRA, as it allowed employers to potentially exclude employees who provide no healthcare services from FFRCA relief and penalize them simply because they work for a healthcare provider.||The revised definition of “health care provider” under § 825.30(c)(1) means employees who are health care providers under 29 CFR 825.102 and 825.125,3 and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.|
|The Intermittent Leave Prohibition: This prohibition bars employees from taking leave intermittently—i.e., separate periods as opposed to one continuous period, and permits intermittent leave only if the employee and employer agree and one of the six qualifying conditions is present.||While the Court concluded that the restrictions on intermittent leave were largely consistent with the FFCRA, the requirement that employees obtain employer consent in order to take intermittent leave was improper.||Where intermittent FFCRA leave is permitted by the Department’s regulations, an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave intermittently under §825.50.|
|The Documentation Requirements. These provisions essentially require employees to submit documentation justifying the request for leave under the FFRCA before they can take such leave.||The Court found that the requirement for written documentation prior to taking leave violated the FFCRA.||The information the employee must give the employer to support the need for his or her leave should be provided to the employer as soon as practicable.
Additionally, § 826.90 is revised to correct an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave to his or her employer.2
Comments on the Temporary Rule
Perhaps the most consequential aspect of the DOL’s new temporary rule is its guidance on the Work-Availability Requirement. Doubling down on its arguments before the Court, the DOL reiterated its position that the Work-Availability Requirement is consistent with the FFCRA. In doing so, the DOL first addressed one of the grounds for the Court’s August 3rd decision striking down the Work-Availability Requirement—namely, that on its face, the Work-Availability Requirement applied to only three of the six qualifying conditions. In its new guidance, the DOL clarified that it was “the Department’s intent, despite not explicitly including the Work-Availability requirement in the regulatory text regarding the other three qualifying reasons, was to apply the requirement to all reasons.”
The DOL then noted that the FFCRA requires an employer to provide FFCRA-leave to employees who are unable to work (or telework) “because” of or “due to” a qualifying reason, contending that “[t]he terms “because,” “due to,” and similar statutory phrases have been repeatedly interpreted by the Supreme Court to require “but-for” causation.” Further responding to the Court’s decision, the DOL stated that “even if ‘leave’ could encompass time an employee would not have worked regardless of the relevant qualifying reason, the Department, based in significant part on its experience administering and enforcing other mandatory leave requirements, interprets the FFCRA as allowing employees to take paid leave only if they would have worked if not for the qualifying reason for leave. ‘Leave’ is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.” In effect, the DOL’s new guidance interprets the FFCRA to not require employers to pay employees who would not have had any work regardless of whether they could satisfy one of the six pandemic-related qualifying conditions.
Definition of “Health Care Provider”
As noted above, the DOL revised its position of who constitutes a health care provider under the FFCRA “by focusing on the role and duties of those employees rather than their employers.” Such employees must be involved in patient care, i.e., through diagnostic, preventive, treatment services or other services in connection with the provision of patient care. This is perhaps the one area where the DOL’s new guidance is in line with the Court’s August 3rd ruling.
The DOL listed a number of justifications for its continued position—even after the Court’s August 3rd ruling—that, with certain exceptions, employer approval is needed to take FFCRA leave intermittently. These justifications include, among other things: the DOL’s interpretation of the FFCRA’s language, and how intermittent leave is permitted under the Family Medical Leave Act (“FLMA”) “for reasons that do not exacerbate risk of COVID-19 contagion.”
The DOL explained its view that “[t]he FFCRA permits employers to require employees to follow reasonable notice procedures to continue to receive paid sick leave after the first work day (or portion thereof) of leave.” The DOL explained its current position that the FFCRA does not require that documentation in support of leave be provided “prior to” taking the leave, “but rather may be given as soon as practicable, which in most cases will be when the employee provides notice” that he or she is taking leave.
Key Employer Takeaways
It is unclear as of this writing whether the DOL’s new temporary rule will be challenged through new litigation, and if so, what the result will be. While the DOL’s new guidance responds to the Court’s underlying concerns, with the exception of the definition of “Health Care Provider,” it does not remedy them. To the contrary, its new temporary rule regarding the Work Availability Requirement essentially seeks to clarify ambiguities in the temporary rule (i.e., that it applies to all six qualifying reasons), but reaffirms DOL’s commitment to the substantive requirement that an employee must have work available to be eligible for paid leave under the FFCRA.
The DOL’s response to the Court’s decision underscores that employers must continue to track this issue closely, and continue to revisit their policies and procedures regarding leave under the FFCRA.
Moritt Hock & Hamroff’s COVID Litigation Task Force will continue to monitor this case and other developments that impact employer practice in the context of the COVID-19 pandemic.
We are available to advise you on COVID-19 litigation related issues. For more information contact either Jonathan Trafimow at firstname.lastname@example.org or (516) 880-7283 or James P. Chou at email@example.com or (212) 239-5523.
 The six qualifying conditions are: (i) The employee is subject to a federal, state, or local isolation order related to COVID-19; (ii) The employee has been directed by a health care provider to self-quarantine due to COVID-19; (iii) The employee has symptoms of COVID-19 and is seeking a medical diagnosis; and (iv) the employee is caring for someone subject to a federal, state or local quarantine or isolation order or for someone who has been directed by a health care provider to self-quarantine due to COVID-19; (v) the employee is caring for a child if the child’s school or place of care is closed or otherwise unavailable due to COVID-19; and (vi) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretary of Treasury and the Secretary of Labor.
 The definition of “health care provider” under § 825.102 is identical to the definition under § 825.125.