By Alan Rauss & Lyndsay Ross

On Aug. 3, 2020, a U.S. District Court in New York vacated certain provisions of the Department of Labor’s (DOL) Final Rule, which governs leave eligibility under the Families First Coronavirus Response Act (FFCRA). The State of New York had challenged the Final Rule, claiming that it too narrowly construed the employee-friendly FFCRA. Earlier this week, the Court agreed and struck down certain portions of the Final Rule.

Specifically, the Court rejected four different aspects of the Final Rule. The first concerns the work availability requirement under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA), the two major subsets of the FFCRA. To be eligible for either, an individual must be unable to work or telework for one of the enumerated COVID-19 related reasons. The Final Rule excluded from eligibility those individuals whose employers did not have work for them, which the Court ruled was inappropriate. The Court found that because COVID-19 has significantly slowed business nationwide, this exclusion would unfairly exclude a substantial number of individuals and omitted the requirement.

The second concerned the Final Rule’s definition of “health care provider.” The FFCRA provides for an exception where an employer can elect to exclude a health care provider from leave requirements. The Court balked at the Final Rule’s expansive definition, noting it is broad enough to even include a librarian or cafeteria at a university with a medical school. Finding the definition permitted “employees whose roles bear no nexus whatsoever to the provision of health care services,” the Court rejected it. Unless and until the DOL puts forth a new definition, individuals should look to the regular FMLA regulations for guidance, which offer a much narrower definition.

Third, the Court considered the Final Rule’s prohibition on intermittent leave. The Final Rule only permits intermittent leave in circumstances where there is minimal risk of COVID-19 spread, and where both the employer and employee agree. While it agreed that limiting intermittent leave to circumstances with minimal risk of spread was reasonable, the Court found the Final Rule completely failed to explain why employer consent is required and consequently struck that requirement.

Finally, New York challenged the Final Rule’s documentation requirements. The Court took issue with the fact that, according to the Final Rule, documents for EFMLEA leave should be provided as soon as practicable, whereas for EPSLA leave, an employer could require documents to confirm continued eligibility any time after the first day of leave. Finding the two provisions irreconcilable and contradictory to the FFCRA’s flexible nature, the Court found that documentation cannot be a precondition to leave.

Practically, the Court’s decision makes many previously-excluded employees eligible for leave. The decision is binding at least for New York employers and employees, but unfortunately is unclear as to whether workers in other jurisdictions may reap the benefits. Looking forward, the DOL could issue interim guidance correcting the Rule, or an appeal could affirm or overrule the decision. However, keeping in mind that the FFCRA sunsets at the end of the year, it’s unclear how much more clarity employers and employees can expect to receive. To understand how the decision may affect your, or your employee’s, FFCRA leave eligibility, contact Alan Rauss ( / 216.736.7221) Lyndsay Ross ( / 216.736.7201) or one of our Labor & Employment attorneys today.