With September approaching and many schools operating under a hybrid or at-home model of teaching due to COVID-19, it is expected that parents will be seeking to take leave under the Families First Coronavirus Response Act (“FFCRA”) to care for their children. A new decision from the Southern District of New York may impact the employees who may be eligible for this leave.
On April 6, 2020, the Department of Labor (“DOL”) issued a final rule interpreting the FFCRA, and provided employers with gap-fill guidance in areas that the Act did not cover. This guidance articulates, in part, when sick and family leave may be taken under the FFCRA, including leave taken to care for children whose schools have been closed due to COVID-19. On April 14, New York State brought suit to have several portions of the guidance vacated because, in the State’s view, they significantly limited which employees may be eligible to exercise their leave rights, and created additional burdens for employees exercising those rights. On August 3, Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York, issued a decision largely agreeing with New York’s analysis.
The four most significant points from this decision are as follows:
- No Work Exclusion Vacated: The FFCRA establishes six qualifying reasons for an employee to take coronavirus-related leave. DOL’s guidance states that, for three of those reasons,an employee will not be eligible for leave if their employer “does not have work for the employee”, reasoning that, in this circumstance, the employee would not have been able to work even if they had qualified for leave. Judge Oetken’s decision vacated as unreasonable the no work exclusion.
- Definition of Health Care Providers Vacated: The FFCRA creates an optional exception to leave for health care providers and emergency responders, leaving employers free to deny leave to employees who were otherwise qualified under the Act, due to the essential nature of the services those employees provide during a pandemic. In its April 6 guidance,the DOL created a hugely expansive definition of “health care providers”, a term not defined in the FFCRA, which includes:
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.
Under this definition, the Court noted, “an English professor, librarian, or cafeteria manager at a university with a medical school would all be ‘healthcare providers’”, despite the services they render having “no nexus whatsoever to the provision of health care services”. The decision deemed DOL’s definition of “health care providers” illegal under the Supreme Court’s Chevron test, without providing a replacement definition.
- Intermittent Leave May be Taken Over Multiple Leave Periods, Without Employer Consent: New York moved to vacate the portion of the DOL’s guidance allowing for employees to use allotted leave over multiple qualifying occasions, rather than for one continuous period. The State also moved to vacate the portion of guidance that required an employee to seek consent from their employer prior to taking leave.The Court upheld DOL’s interpretation that employees may use their allotted leave on multiple separate periods, but agreed with New York that there is no basis to have employees obtain employer consent prior to taking leave, noting that requiring employer consent does not correlate to any particular public health need.
- Employees Need Not Provide Documentation in Advance of Leave: DOL’s guidance required that employees “submit to their employer, ‘prior to taking [FFCRA] 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.” The Court vacated this provision,stating that its more stringent requirements were inconsistent with the FFCRA,which merely requires advance notice to be provided “as is practicable” and when the need for leave is foreseeable.
Judge Oetken’s decision, being the first to litigate DOL’s interpretation of the FFCRA, represents the current state of the law, and has a direct effect on employees and employers in New York. If appealed, the decision could create binding authority in New York, Connecticut, and Vermont. It is also possible that, as a result of the ruling, the Department of Labor will issue new or revised guidance. As of August 6, the DOL has not filed a notice of appeal, and no new guidance has been issued.
It is important to note that it is unlikely any appeal taken will be briefed and decided prior to the start of the school year. For this reason, and due to the fluidity of the situation, it is imperative that businesses check in with their attorneys prior to making any COVID-19 leave-related decisions, and remain prepared to pivot. We encourage you to read the FFCRA guidelines very carefully, and keep this decision in mind when making or administering leave policies.
Here are 5 Quick Tips to help you prepare for the start of the school year:
- Prepare for your employees’ leave as soon as you know it could be taken. This includes re-tasking assignments and ensuring that someone is available to cover the employee’s work. Employers should maintain open lines of communication and check-in with employees on a routine basis. These routine check-ins can keep employers abreast of employees’ potential need for leave under the FFCRA, even if no advance notice is required or given, and will leave employers better prepared to adapt to a short staff.
- All leave notices should be treated equally! An employer should not prioritize or give preference to certain employees who have applied for leave—whether the leave is due to illness, or child care. Moreover, an employer should not interject on a parent’s decision to send their child back school, or act in any other way that gives the impression they are discouraging the use of leave.
- Remember that employees have a right to take leave under the FFCRA and are not required to find their own replacements or work from home while on leave.
- Employees may not be retaliated against because they asked to take or took leave. To avoid even the appearance of retaliation, employers should document the leave process entirely.
- An employee’s reason for needing leave should remain confidential.