Department of Labor’s COVID-19 Leave Regulations Struck Down by New York Court
By Aaron Chaet
On August 3, 2020, the United States District Court for the Southern District of New YorkFN1 held that the Department of Labor’s (DOL) regulations in its Final RuleFN2 contravened the leave provisions established by Congress in the Emergency Paid Sick Leave Act (“EPSLA”)FN3 and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”)FN4, collectively referred to as the Families First Coronavirus Response Act (“FFCRA”).
The Court struck down several portions of the DOL’s Final RuleFN5 which included: (1) conditioning employees’ leave based upon the availability of work; (2) an employee’s entitlement to intermittent leave; and (3) an employee’s obligation to obtain documentation prior to taking leave.
The Court, examining the EPSLA and EFMLEA, determined that the DOL’s Final Rule, which conditioned leave based upon availability of work, was not permissible.FN6 The Court stated that neither the EPSLA or the EFMLEA contained a “work availability” requirement and that the DOL did not adequately explain why the work availability requirement only applied to three of the six qualifying reasons for leave under the EFMLEA.FN7
With regards to an employee’s entitlement to intermittent leave, the Court struck down the DOL’s requirement that employees obtain their employer’s consent prior to taking intermittent leave. The Court reasoned that the DOL’s consent obligation was inconsistent with the rules relating to intermittent leave under the Family Medical Leave Act (“FMLA”) and noted that the DOL failed to provide any rationale for the “blanket requirement” for COVID-19 related leave.FN8
Finally, the Court similarly struck down the DOL’s requirement that employees, prior to taking leave, provide their employers with documents indicating the reason for the leave, the duration of the leave, and the authority for the leave.FN9 The Court noted that Congress had already established procedures regarding notice and that neither the EPSLA or the EFMLEA require that an employee provide notice, including any documentation, prior to leave.FN10 Therefore, the DOL’s document requirement improperly “impose[d] a different and more stringent precondition to leave.”FN11
TAKEAWAY
Although the decision from the Southern District of New York only applies to employers within that court’s jurisdiction, employers in all jurisdictions should also take care when enforcing policies under the acts as well as the DOL’s regulations. This is particularly true for the regulations specifically rejected by the District Court. Employers with questions about the court’s ruling or COVID-19 related leave should contact the attorneys at Campbell Litigation.
Footnotes:
FN1 – State of New York v. U.S. Dep’t of Labor, et al, 20 cv 3020 (JPO) (S.D. NY Aug. 3, 2020)
FN2 - 85 Fed. Reg. 19,326 (Apr. 6, 2020)
FN3 –The EPSLA requires covered employers to provide paid sick leave to employees with one of six qualifying COVID-19-related conditions. See FFCRA §§ 5102, 5110(2)
FN4 - EFMLEA entitles employees who are unable to work because they must care for a dependent child due to COVID-19 to paid leave for a term of several weeks. See FFCRA §§ 3102(a)(2); 3102(b)
FN5 - 85 Fed. Reg. 19,326 (Apr. 6, 2020)
FN6 -Final Rule at 19,349–50
FN7 – See FN1
FN8 – Id.
FN9- Final Rule at 19,355 (§ 826.100)
FN10- EFMLEA provides that, “[i]n any case where the necessity for [leave] is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.” FFCRA § 3102(b). EPSLA provides that “[a]fter the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.” Id. § 5110(5)(E)
FN11- See FN1