The Sophisticated Employer Blog

When the Families First Coronavirus Response Act passed in mid-March, it contained two sections granting some employees with leave of absence rights through the end of this year. The Final Rule was issued by the Department of Labor (DOL) in record time on April 1, just a couple of weeks later. When I reviewed the Final Rule, there were some sections that didn’t seem to line up with the law itself. Now I know why.

The Emergency Family and Medical Leave Expansion Act was an actual amendment to the Family and Medical Leave Act. It provides up to 12 weeks of paid leave for eligible employees when COVID-19 interferes with childcare and the employee needs to stay home to care for their child. Pay is limited to 2/3 regular pay up to $200/day.

In general terms, the Emergency Paid Sick Leave Act provides up to two weeks of paid leave when the eligible employee is subject to a quarantine order, having COVID-19 symptoms and waiting for a diagnosis and told to self-isolate, or caring for a family member who was told to do so, caring  for a child whose school or place of care is closed or childcare is unavailable, or for a similar reason approved by the Secretary of Health and Human Services. Pay is capped at 2/3 regular pay and $200/day or full pay up to $511/day depending on the specific reason for leave.

If you are an employer with fewer than 500 employees, you will remember the scramble to understand these two new laws. I know my phone was ringing off the hook (wait, there aren’t hooks anymore… should I say blowing up?). However, by mid-April or so, things quieted back down. We came to understand the leave laws, and employers were applying them to their workforce.

Well, we can’t let things get dull, can we? Here it comes, get ready…the U.S. District Court for the Southern District of New York has struck down some parts of the DOL’s Final Rule. Was that a collective groan I just heard?

Here’s what happened. The State of New York sued the DOL, arguing that it had exceeded its authority by promulgating a Final Rule that contains provisions that conflict with the language of the statutes. Without getting into the weeds of the analysis (and there is enough to cause a lengthy snooze), let’s summarize what was struck.

The “work-availability” requirement was struck by the court. Specifically, paid leave is permitted for employees who are “unable to work (or telework) due to a need for leave” because of the reasons explained above related to COVID-19. However, the Final Rule excluded “employees whose employers ‘do[] not have work’ for them.” Final Rule at p 19, 349-50 (Sections 826.20(a)(2), (6), (9), (b)(1)). This was not an exception found in the statutes.

Under the Final Rule, an employer can deny leave to “Health Care Providers.” The court found the definition of Health Care Provider in the Final Rule to be too broad because it excluded not just employees who fall within the definition of Health Care Provider, but also any employee, regardless of the nature of their position, if they work for an entity that fits the definition. Thus, under the Final Rule, the secretary at a hospital can be denied leave. The court found that only an employee capable of providing healthcare services can be denied leave under the new federal laws.

The Final Rule also allows employees to take leave on an “intermittent basis” but only for certain qualifying reasons and only if the employer agrees. The reasons for leave, which have a blanket prohibition of intermittent leave, are those associated with a higher risk of spreading the disease (for example, being subject to a government quarantine order, being advised to self-quarantine or caring for someone else who has, experiencing symptoms and seeking a medical diagnosis, or experiencing similar conditions identified by Health and Human Services).

Thus, it makes sense that the law prohibits an employee experiencing virus symptoms from taking the day off to seek a medical diagnosis but returning to work while waiting for test results. But giving the employer the power to disapprove intermittent use of leave for other reasons (such as childcare) is impermissible under the language in the statutes.

The Final Rule’s documentation requirements as a “precondition” to taking leave was also struck by the court given that the laws themselves specifically address when documentation must be provided depending on the reason for the leave.

The court was gracious in acknowledging that the DOL had “labored under considerable pressure in promulgating the Final Rule. This extraordinary crisis has required public and private entities alike to act decisively and swiftly in the face of massive uncertainty, and often with grave consequence. But as much as this moment calls for flexibility and ingenuity, it also calls for renewed attention to the guardrails of our government. Here, DOL jumped the rail.” The DOL jumping the rail? Recall the white-collar exemptions.

So, where does this leave your company? Well, it’s not binding per se on a federal court that is within the federal judicial Sixth Circuit (Michigan, Kentucky, Ohio, Tennessee), but the U.S. District Court in the Southern District of New York is generally well respected and our federal courts may find the analysis persuasive. This is especially true given that the U.S. Court of Appeals for the Sixth Circuit has become much more pro-employee, and these rulings favor employees.

But, for now, we can “cautiously” rely on the Final Rule.