A federal judge just invalidated some key elements of the Department of Labor’s (DOL) interpretation of the Families First Coronavirus Relief Act (FFRCA), including concluding that the DOL’s interpretation of ‘health care providers’ is too broad.
While the ruling doesn’t yet apply nationally, you should be prepared for your local government to consider the judgments. Now that one court successfully overturned the DOL FFCRA requirements, other states are encouraged to move forward with their own DOL lawsuits and adopt the new orders.
It’s imperative that you are aware of the legal holes in the existing rule and keep an eye on the DOL’s next steps. The DOL could appeal the NY ruling or issue a new, updated rule. In the meantime, your best bet is to seek legal advice on whether you need to amend your practice’s COVID-19 policies on paid leave and FFCRA benefits. Here are the DOL FFCRA areas that the state-federal law reverses, as well as the legislation decision details.
The Case Challenged Confusing DOL FFCRA Definition & More
New York State Attorney General Letitia James filed a lawsuit in April stating that the DOL rule “unlawfully narrows” the number of people who are covered by FFRCA, which provides paid leave for individuals affected by the coronavirus. But the challenge isn’t just about terminology. James also claimed the DOL’s interpretation:
- unfairly prevents workers from being eligible for FFRCA leave if their employer doesn’t have work for them to do
- imposes unwarranted restrictions on intermittent leave
- oversteps documentation requirements.
The verdict: Judge J. Paul Oetken in the U.S. District Court for the Southern District of New York ruled that the DOL exceeded its authority and that their final rule is too restrictive in four areas pertaining to its interpretation of the FFRCA.
‘Healthcare Providers’ Too Broad
The FFRCA provides certain employees with paid sick leave or expanded family and medical leave to care for a dependent child whose school or childcare is closed, or for sick time absences related to COVID-19. The DOL exempted ‘health care providers’ from FFRCA eligibility and outlines a vast definition of who meets those qualifications.
Based on the DOL final rule, a health care provider includes anyone employed at a multitude of medical type facilities, laboratory or medical testing sites, nursing homes and retirement facilities, postsecondary educational institutions that offer healthcare instruction, medical schools, and many other similar institutions, including any individual employed by an entity that contracts with any of these institutions.
The problem: Based on the DOL definition, a university professor or hospital gift shop employee would fall under the category of health care provider. So even though they will never interact with a patient on a clinical level, they could be denied FFRCA paid leave.
Change: The court ruled that for an employee who isn’t capable of providing healthcare services, she doesn’t qualify as a health care provider who is exempt from FFCRA.
Definition Could Impact Your Exemption Status
Applying the above ruling example to your practice suggests that your front desk staff may not be exempt from FFCRA eligibility using the health care provider definition. Your practice’s size, however, could still exempt you from FFCRA requirements. There is an FFCRA exemption for companies that have less than 50 employees.
Far-spread impact: The changes could have wide-reaching repercussions. You may need to:
- apply for FFCRA exemption based on size rather than provider type
- update your FFCRA paid time off and childcare policies
- review your Payroll Protection Program (PPP) employee exemption calculations.
No Work, No Paid Sick Leave
The DOL’s final rule denies paid sick leave in the event that an employer doesn’t have work for an employee. The judge ruled this language ambiguous and invalid.
Change: An employer that doesn’t have work available must still provide paid sick leave. The only exception is if the employee does not meet any of the six reasons for needing the leave as outlined by FFCRA.
Intermittent Leave Inappropriately Limited
In the lawsuit, Attorney General James claimed that the DOL overstepped their bounds by:
- forcing staff to take their leave all at once even if they didn’t need it
- only allowing intermittent leave under certain circumstances and requiring the employer’s permission.
Change: The judge ruled that:
- your employee does not need your approval to take intermittent leave for childcare-related leave due to the coronavirus
- you can impose intermittent leave requirements to prevent infection in the workplace.
Documentation Requirement Too Extensive
Per the DOL rule, before your employee can take FFRCA leave, she must submit extensive documentation to you that supports the leave request, including:
- requested leave dates
- if applicable, the name of the entity who ordered her quarantine.
The judge ruled that the DOL overstepped their authority with these documentation requirements which violated the purpose of the FFCRA, aren’t called for in the statute, and noted that they expose New Yorkers to the harms that Congress was looking to prevent.
Change: You cannot require notice as a required precondition for your employee taking FFCRA leave.
Best bet: Get the latest on the steps your practice must take to implement the most recent regulation orders from healthcare and employment attorney, Kelly Holden, Esq. During her online training, “FFCRA: Protect Your Practice from COVID-19 School Closure Paid Time Off Lawsuits,” Kelly will provide you with plain-English advice on how to correctly respond to the complex COVID-19 related employee time off situations your practice will be faced with. You’ll walk away from this online training with confidence that you’re complying with FFCRA employee time-off rules.
