July 5, 2020

Volume X, Number 187

July 03, 2020

Subscribe to Latest Legal News and Analysis

July 02, 2020

Subscribe to Latest Legal News and Analysis

New York Challenges U.S. Department of Labor’s Final Rule on FFCRA

On April 14, 2020, the State of New York filed a lawsuit against the U.S. Department of Labor (DOL) seeking declaratory and injunctive relief in the U.S. District Court for the Southern District of New York. In the lawsuit, New York challenges the April 1, 2020, final rule that the DOL issued implementing the emergency family leave and paid sick leave requirements of the Families First Coronavirus Response Act (FFCRA). The final rule, which is currently effective, expires on December 31, 2020.

New York is seeking to sever and vacate certain provisions of the final rule, alleging that they “unlawfully narrow” the number of individuals covered by the FFCRA in contravention of the Administrative Procedure Act. New York further asserts that the final rule undermines the FFCRA by codifying “broad, unauthorized exclusions” from employee eligibility that “risk swallowing Congress’s intended protections,” and creating “whole cloth” new restrictions and burdens on affected employees.

The case has been assigned to District Judge J. Paul Oetken, who ordered expedited briefing on New York’s  Motion for Summary Judgment to be completed by May 5, 2020. We expect that Judge Oetken will issue a decision on the motion shortly thereafter.

The State’s Arguments

New York advanced four central arguments against the DOL’s final rule.

  1. The final rule imposes work availability requirements that unlawfully deny paid sick leave and emergency family leave to employees.

New York argues that the final rule provides employers with undue discretion to deny employees paid sick leave and emergency family leave that employees are otherwise entitled to under the FFCRA. Specifically, the state contends that the final rule allows employers to deny employees paid sick leave or emergency family leave where the employer determines that it “does not have work” for the employee under certain conditions.

According to New York, the work availability requirement runs contrary to the statutory language of the FFCRA that the employer “shall” provide such paid leave under qualifying conditions. New York also argues that other language in the FFCRA mandates Congress’s intent not to allow for employer discretion in denying leave if a qualifying condition has been met.

The final rule’s definition of “health care provider” is contrary to the plain language of the statute.

In addressing the FFCRA’s exemptions for “health care providers,” New York argues that the DOL prescribed a broad definition that improperly excluded millions of individuals from protection without a statutory basis. Specifically, the state argues that the final rule’s broad construction conflicts with the statutory language of the FFCRA.

New York further argues that Congress adopted the existing definition of “health care provider” under the Family and Medical Leave Act (FMLA), which is limited to licensed medical professionals who provide medical services to individuals. Instead, the state argues that the final rule excludes certain individuals employed at colleges or universities, medical schools, and hospitals, as well as independent contractors.

The DOL has no statutory authority either to prohibit intermittent leave or to condition its use on employer consent.

Under the final rule, employees may take intermittent FFCRA leave at different periods of time for certain qualifying conditions, subject to employer approval. However, New York argues that Congress did not authorize the DOL to require that FFCRA leave be taken in a continuous period.

Specifically, New York argues that the final rule exceeds statutory authority by requiring that an employee take intermittent paid sick leave only if the employee (1) teleworks from home and is permitted to do so by his or her employer or (2) reports to a worksite and requires paid sick leave to care for a child whose school is closed and is permitted to do so by his or her employer. In support of its argument, New York points to the statutory text that references leave “for any day,” rather than a continuous block of time, which suggests Congress’s intent that leave can be used in any increments.

The DOL has no statutory authority to impose the final rule’s documentation requirements as a precondition to taking leave.

The final rule requires that employees seeking leave provide certifications for qualifying reasons and permits employers to request additional documentation. New York argues that the DOL exceeded its statutory authority by placing “per se obstacles” in the path of employees who would otherwise qualify for paid leave under the FFCRA.

In support, New York notes that the FFCRA’s emergency family medical leave provision requires only that notice be provided where a triggering event is “foreseeable.” By analogy, New York contends that the FMLA requires prior notice only where the necessity for leave is “foreseeable” based on an expected birth, adoption placement, planned medical treatment, or a covered active-duty deployment. In addition, New York argues that preconditioning leave would cause undue delay and frustrate Congress’s intent to provide paid sick leave.

Key Takeaways

Courts typically apply a highly deferential standard to agency interpretations of congressional actions, meaning that New York’s lawsuit faces an uphill battle. However, should New York’s attempt to enjoin key aspects of the DOL’s regulations be successful in whole or in part, employers would need to significantly alter their approaches to documenting and providing FFCRA leave and benefits. 

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 115

TRENDING LEGAL ANALYSIS


About this Author

Aaron Warshaw, Ogletree Deakins Law Firm, Labor and Employment Attorney
Shareholder

Aaron Warshaw is an experienced, attorney who represents a diverse array of clients in labor and employment matters.  He is one of the founding attorneys of the New York City office.  Aaron’s first-chair experience includes representing Fortune 500 companies in single-plaintiff and class-action employment cases.  He has actively litigated and appeared in many jurisdictions throughout New York State, including before state courts, federal courts, appellate courts, and administrative agencies.  Aaron also is a trusted advisor for management in navigating federal, New York...

212-492-2509
Michael Oliver Eckard Employment Attorney Ogletree Deakins
Shareholder

Michael Oliver Eckard is a shareholder in the Charleston and Atlanta offices and has been an employment lawyer at Ogletree his entire legal career. Michael represents companies in labor, employment, restrictive covenant, and wage and hour matters in the health care, manufacturing, chemicals, hospitality, transportation and logistics, and retail industries, among others. He regularly advises companies on human resources and labor policy issues. Michael represents his clients in many types of employment litigation matters, including wrongful termination claims, sexual harassment claims, employment discrimination claims, employment contracts, wage and hour claims, trade secrets, and non-compete agreements. He also represents management in union organizing campaigns, collective bargaining negotiations, arbitrations, and unfair labor practice and representation proceedings.

Michael’s nationwide litigation and advice practice focuses on protecting corporate clients against claims of discrimination, harassment, and retaliation; claims involving restrictive covenants, unfair competition, and trade secret claims; federal and state wage and hour laws; and claims of defamation, breach of contract, and intentional torts. He has litigated labor and employment-related matters in federal and state courts throughout the United States, including appeals before the Georgia Court of Appeals, Georgia Supreme Court, and the Eleventh Circuit Court of Appeals. His litigation matters include single-plaintiff, multiple-plaintiff, and collective action cases, as well as labor and employment arbitrations and administrative proceedings.

Michael serves as a trusted advisor to his clients, regularly providing counsel to corporate executive, legal, and human resources leaders on matters such as risk management; labor relations; workforce planning (including workforce growth and reductions in force); labor and employment matters pertaining to corporate mergers, divestitures, and other transactions; employee recruiting and hiring practices; employee discipline and termination; wage and hour law compliance; and strategies for preventing and investigating harassment and discrimination claims.

Prior to his legal career, Michael served in the U.S. Army, specializing in Military Intelligence. Michael served in multiple duty stations, including operational tours in Kuwait. Michael is also a licensed pilot and enjoys flying airplanes for recreation.

Michael is a former law clerk for the U.S. Department of Justice – Civil Division, Washington D.C. Michael is also the 2005 recipient of the University of South Carolina Law School’s coveted Knox L. Haynsworth Labor Law Scholarship Award.

843-720-0872
Associate

Erik Mass is an associate in the New York City Office.  He defends employers in all aspects of labor and employment litigation, including collective action wage and hour disputes, single and multi-plaintiff discrimination suits, and wrongful termination actions. Erik counsels employers on compliance with federal, state, and local employment laws, and conducts harassment seminars for employees.  Erik also advises and defends clients in matters concerning access for individuals with disabilities under Title III of the American with Disabilities Act.  He has represented a wide array of...

212-492-2500