Since the introduction of the Families First Coronavirus Response Act (the “Act”) and its impact on employee leaves, employers, and their advisors, have been somewhat flying by the seat of their pants.  There are regulations associated with the Act, and administrative guidance from the Department of Labor and other sources.  However, how the law is interpreted by the courts had yet to be seen until just recently.

In State of New York v. United States Department of Labor, the state challenged several features of the DOL’s final rule regarding the Act, arguing the DOL exceeded its authority under the statute.  New York argued that the DOL’s definition of “health care provider,” the DOL’s guidance that employers could deny leave to an employee when there was no work available, its provisions relating to intermittent leave and its documentation requirements were not consistent with the language of the Act.

In addressing the work-availability requirement, the court veered away from FMLA interpretations that say FMLA leave does not run when work is not available for the employee.  It held that the work availability rule did not apply because it was not well-reasoned based on the language of the Act.  Therefore, just because work is not available for employees does not mean that employees are not eligible for paid leave under the Act.

In discussing the definition of “health care provider,” court noted that the DOL conceded that under its definition, an English professor, librarian, or cafeteria manager at a university with a medical school would all be “health care providers” under its interpretation.  The court found that the DOL’s final rule on the Act was overly broad, and the Act left it to the Secretary of Labor to determine that a person is capable of providing healthcare services; “not that their work is remotely related to someone else’s provision of healthcare services.” Because of this, the court struck down the final rule’s interpretation of health care provider and left it to the Secretary of Labor make determinations on a more specific level.

In addressing the state’s argument pertaining to intermittent leave, the court held that an employee taking leave for an intermittent-leave-restricted reason must take his or her leave consecutively until his or her need for leave abates, but retains any remaining paid leave and may use that leave if another qualifying condition arises.  However, it struck down the portion of the agency’s final rule that requires employer consent for intermittent leave use.

Finally, the court addressed the documentation requirements of the final rule.  The FFCRA requires documentation including the reason for leave, the duration of the requested leave, and the authority for the isolation or quarantine order qualifying them for leave, when relevant.  The court found this interpretation wholly inconsistent with the Act’s documentation requirements, which only require “such notice of leave as is practicable,” and for employees to continue to provide notice of the need for leave after the first workday an employee receives paid sick time under the Act.

Since the final rule was introduced by the DOL, employers have attempted to follow those guidelines and work within the FFCRA’s restrictions.  While this was only the decision of one federal circuit court, these decisions can be instructive for how other courts might treat challenges to employer practices.  Because of this, employers need to be aware of how the lower-level courts are interpreting the Act and proceed accordingly.  If your practices are inconsistent with the findings of this court, you should contact your legal counsel for guidance.  If you, or your organization are in need of guidance in staying on the right side of the law, contact the Wiley Law Office, for Coronavirus leave guidance that works.