PELRAS Update | August-September 2020 – A federal court invalidates portions of the USDOL’s Families First Coronavirus Response Act regulations

Paul N. Lalley, Esq., Campbell Durrant, P.C. | August-September 2020

The enactment of the Families First Coronavirus Response Act (FFCRA) in March of 2020 was an extraordinarily speedy response by Congress – given the usually slow process of lawmaking – to the economic disruption caused by the COVID-19 pandemic. Congress tasked the United States Department of Labor (USDOL) with drafting regulations to implement two key components of the FFCRA: the Emergency Paid Sick Leave Act (EPSLA), and the Emergency Family and Medical Leave Expansion Act (EFMLEA). In fact, Congress allowed the USDOL to skip the usual prolonged agency rulemaking process and directed it to publish temporary regulations by April 1, 2020 – slightly more than two weeks from the FFCRA’s enactment.

The USDOL complied with Congress’ directive and published temporary FFCRA regulations on April 1, 2020 (the Rule). In doing so, the USDOL believed that part of its role was to harmonize portions of the EPSLA (which provides for limited paid sick leave due to certain pandemic-related conditions) with the EFMLEA (which provides for additional limited paid leave to care for a child due to pandemic-related school or child care closures), and to use the rulemaking process to further the legislative intent behind the FFCRA’s enactment – even when that meant disregarding specific legislative language.

The State of New York, however, filed a lawsuit in federal court to block portions of the Rule.  Specifically, in State of New York v. USDOL, New York claimed that the USDOL’s regulations restricted paid leave eligibility in situations where the State believed that employees should be eligible. The USDOL exceeded its rulemaking authority, according to New York, when it used the Rule to modify language in the FFCRA and to create concepts in the regulations that the State argued were not supported by the legislation.

A federal district court judge agreed with the State of New York’s arguments and on August 3, 2020 declared portions of the Rule invalid. One portion of the Rule that the district court invalidated was the USDOL’s requirement that in order for a person to be eligible for paid FFCRA leave, there has to be work available from the employer for the person to perform – in effect, making furloughed employees ineligible for those benefits. The court concluded that the Rule went beyond the USDOL’s rulemaking power in making this “work availability” requirement a condition for paid leave benefits eligibility in all circumstances.

Another portion of the Rule that the district court invalidated is the expanded definition of “health care provider” whom employers can exclude from eligibility for FFCRA paid leave benefits (similar to the exclusion for “emergency responders”). The court found that the USDOL’s definition of “health care provider” was so broad that it would allow, for example, a university to exclude an English professor from eligibility for FFCRA benefits. It was beyond the USDOL’s rulemaking powers to define a “health care provider” so expansively that it excluded from coverage a number of employees who do not serve a health care role in any traditional sense.

New York’s lawsuit also challenged a provision of the Rule that an employee can use paid leave under the EPSLA and the EFMLEA on an intermittent basis only for circumstances where the employee does not present a health risk to their coworkers (such as when leave is needed to care for a child whose school is closed), and only when the employer has agreed to allow intermittent leave. The court upheld the Rule’s requirement that intermittent FFCRA leave could only occur in situations where the employee does not present a health risk to their coworkers, but it invalidated that part of the Rule that required the employer’s agreement as a precondition to use intermittent leave.

Finally, the court struck down the Rule’s requirement that employees provide documentation in support of a need for FFCRA leave when such leave is foreseeable before the start of the leave.  The court found that the Rule’s documentation requirement was too strict when viewed against the more generous notice provisions of the FFCRA itself, which specifically mentions notice to the employer – in the case of leave under the EPSLA – after the first day of qualifying leave. 

As of the writing of this article, the USDOL had not yet appealed the federal district court’s order, and there is some uncertainty whether it will do so and whether the decision applies outside of New York. As currently enacted, the EPSLA and the EFMLEA expire on December 31, 2020, so there is reason to wonder whether the USDOL will seek a stay of the district court’s ruling to keep the Rule in effect for the next four months, or if it will simply modify the Rule to comply with the federal court’s order. But the court’s ruling raises a point of caution for Pennsylvania public employers facing questions about employee eligibility for paid leave under the FFCRA, particularly as some school districts are opening with remote-only instruction and employees ask for paid leave (perhaps on an intermittent basis) to care for their children. (And for information on the most recent guidance from the USDOL on FFCRA benefits eligibility during remote and hybrid learning for school-age children, see Julie Aquino’s article on the Department’s recent FAQs). It is therefore strongly recommended that public employers consult with their labor and employment counsel to get the most up-to-date advice on what the FFCRA requires.