On August 3, the federal court for the Southern District of New York (SDNY) issued an order invalidating several significant portions of the Department of Labor’s (DOL’s) Final Rule regarding the Families First Coronavirus Response Act (FFCRA). The SDNY struck down the following provisions:
- That work has to be otherwise available to the employee for the employee to be eligible for Emergency Paid Sick Leave (EPSL).
- The DOL’s expansive definition of “healthcare providers” for the purposes of who can be excluded from the FFCRA mandated leave.
- That an employer must agree to the use of EPSL on an intermittent basis by employees for reasons not related to the possible spread of COVID-19 by the employee.
- That an employee must provide documentation requesting FFCRA before the beginning of the leave.
This ruling clearly applies in the Southern District of New York, however, its impact outside of the district is uncertain. As of now, employers who operate in that jurisdiction may have differing obligations under the FFCRA than employers operating outside.
A more detailed description of the ruling is provided below.
The FFCRA only applies to employers with 500 or fewer employees. According to the Emergency Paid Sick Leave Act (EPSLA) portion of the FFCRA, an eligible employee may take paid leave for any of the following reasons:
- The employee is subject to a government quarantine/isolation order.
- The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for an individual subject to a quarantine/isolation order by the government or a healthcare provider.
- The employee is caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19.
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health.
Furthermore, under the Emergency Family and Medical Leave Expansion Act (EFMLEA), an employee can take an additional 10 weeks of leave at two-thirds pay if staying home to take care of children whose schools have been closed or childcare provider is unavailable because of COVID-19-related reasons.
The SDNY made the following findings regarding four of the provisions in the DOL’s Final Rule regarding the FFCRA:
- Impact of Availability of Work. According to the Final Rule, an eligible employee is available for EPSL for the following three of the six qualifying reasons only if work is otherwise available for the employee:
- The employee is subject to a government quarantine/isolation order.
- The employee is caring for individual who is subject to a government quarantine/isolation order or healthcare provider directive for COVID-19-related reasons.
- The employee is caring for a child whose school has closed or whose childcare provider is unavailable due to COVID-19.
According to the court’s opinion, the DOL argued that the concept of paid leave is available only if work was otherwise available to the employee applies to all six reasons for EPSL. The court found the provision of the Final Rule that paid leave is available only if work is otherwise available to an employee to be invalid. The court’s order would seem to render employees who are furloughed for lack of work to be eligible for EPSL if they experience a qualifying reason for EPSL while out on furlough.
- An employer may choose to exclude “health care providers” or “emergency responders” from leave benefits under the FFCRA. The FMLA defines “health care provider” as “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery” or “any other person determined by the Secretary to be capable of providing health care services.” 29 U.S.C. § 2611(6)(B). The EPSL specifies that “health care provider” has the same meaning given that term in the FMLA but also states that the Secretary of Labor “may issue regulations to exclude certain health care providers and emergency responders from the definition of employee.” Id. § 5111(1).
According to the DOL Final Rule, for purposes of excluding employees from leave both under the EPSL and EFMLEA, healthcare provider means the following:
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…. [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. This also includes 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 SDNY struck down this definition of a healthcare provider in the Final Rule as invalid. We are therefore left, for purposes of exclusion of healthcare providers from FFCRA benefits, with the definition provided in the FMLA (a doctor of medicine or osteopathy) and presumably the expansion of that term by the DOL in the FMLA regulations until further legal developments or DOL announcements regarding possible updates.
For purposes of the FMLA, the DOL regulations define “healthcare provider,” in addition to a doctor of medicine or osteopathy, to include the following professionals:
- Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors.
- Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under state law and who are performing within the scope of their practice as defined under state law.
- Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts.
- Any healthcare provider from whom an employer or the employer’s group health plan’s benefits manager will accept the certification of the existence of a serious health condition to substantiate a claim for benefits.
- A healthcare provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.
- The SDNY court also struck down any requirement that the employer must agree to intermittent leave under EPSLA. Intermittent leave is only available for conditions that are unrelated to any possible transmission of the virus by the employee.
- Finally, the SDNY struck down any requirement that an employee must submit any sort of documentation supporting the need for FMLA before the beginning of the leave.
We will continue to monitor these developments and the impact of this ruling. With the COVID-19 and leave requirements continuing to change and grow in complexity, FFCRA-covered employees should consult Bass, Berry & Sims’ COVID-19 Employer Resource Center and reach out directly to our Labor and Employment group for further explanation on FFCRA compliance requirements.