FFCRA Exemptions Successfully Challenged

By Carla Hogan, Esq.

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In early April, we summarized the federal paid leave law under the Families First Coronavirus Response Act (“FFCRA”) and the U.S. Department of Labor Wage and Hour Division’s (“DOL”) issuance of temporary regulations implementing the FFCRA (“Temporary Rule”).  Subsequently, New York filed an action against the DOL seeking to circumscribe certain exemptions.  On August 3, 2020, a New York federal district court held four provisions of the DOL Temporary Rule  invalid – leaving employers scrambling to decipher whether they must now provide paid sick leave benefits to their employees.  And, to the extent State leave laws mimic the language of the DOL FFCRA rules, the application of those leave laws need to be re-examined.  

Work-Availability Requirement

Under the Temporary Rule, employers are not required to provide paid leave benefits if, for any reason, the employer determines that it does not have any work for the employee.  The decision overturned this provision, now potentially rendering furloughed or laid-off employees eligible for FFCRA benefits.

Definition of Health Care Provider Narrowed

Temporary DOL Rule stated that covered employers may choose to exclude its employees who are health care providers or emergency responders from paid sick leave and/or expanded family and medical leave.  As defined by the Temporary Rule: “a health care provider is 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.”  

In striking the definition, the Court held that it was impermissibly overbroad – for example, an English professor at a university with a medical school would be considered a “healthcare provider” under the Temporary Rule.  While the Court did not revise the definition after it struck it down, it concluded that the person must be “capable of furnishing healthcare services.” Employers cannot automatically exclude any employee working in a health care business but must, instead, carefully consider the employee’s role within the organization and whether it involves the provision of health care services.

Bear in mind though that there are other exemptions that still might exempt the employee such as the employer employs less than 50 employees or the employee who cannot report to work due to COVID related reasons, is able to work remotely.

Intermittent Leave

Previously, in order for an employee to take intermittent leave under the Temporary Rule, one of the requirements was that the employer and employee had to agree on the type of leave (paid sick leave or paid family leave) and the increments taken.  In its decision, the Court struck down this requirement – now allowing an eligible employee to take intermittent leave under FFCRA without seeking his or her employer’s permission. 

Documentation Requirements

Under the Temporary Rule, in order to obtain FFCRA benefits, the employee was required to submit paperwork to their employer, indicating the requested leave dates, the reason for leave and a statement that the employee was unable to report to work or telecommute due to COVID-19 reasons.  Additionally, if relevant, the employee was required to identify the health care provider who suggested quarantine for COVID-19 and further, if a child was involved, the name of the child and any school or child care center that was closed due to COVID-19.  Now, based on the Court’s decision, documentation need not be provided before an employee takes leave under FFCRA.  

At this point it is unclear how far the decision will reach – if at all – outside of the State of New York.  We expect that the DOL will either appeal and seek a stay or issue revised guidance based on the Court’s decision; however, for the time being, covered employers should update their Employee Handbook or leave policies to include these revisions to the FFCRA leave provisions, even though they are currently set to expire December 31, 2020.  

As the COVID-19 leave laws continue to evolve to meet changing circumstances and policy considerations, employers are encouraged to review their particular circumstances with counsel to avoid making errors in benefit determinations.

Weiss Zarett represents healthcare providers and business owners in a wide variety of employment matters, including advising clients on current leave laws and reasonable accommodations under COVID-19.  If you have any questions regarding the above, please email Carla Hogan, Esq. at chogan@weisszarett.com.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including employment, corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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