Judge Requires FFCRA Leave When No Work Available, Voids Broad Healthcare Industry Exception

A judge in the United States Southern District of New York, the federal court in New York City, has issued an order invalidating important parts of the United States Department of Labor (“DOL”) regulations implementing leave under the Families First Coronavirus Response Act.

Most important, the court struck down the “work availability” rule – which confirmed that employees could not take leave when an employer has no work for them – and the regulations’ broad definition of “healthcare provider,” which excludes most employees in the healthcare industry from taking leave. The court’s ruling can be viewed here.

The court first considered whether one of the most important aspects of the law – whether workers must receive leave even when an employer does not have work for them – was treated improperly by the DOL. In a roundabout analysis, the court found that the text of the regulation seems to apply the “work availability” requirement only to three of six qualifying reasons for leave (although the DOL argued it was meant to apply to all reasons for leave, consistent with its opinion throughout guidance materials). It then found that the language of the law itself did not necessarily require that work be available for employees in order for them to take leave. Based on this drafting mistake and its interpretation of the law, the court held that the DOL could not exclude workers for whom an employer has no work from taking paid leave under the law.

The court also considered the regulations’ broad definition of “healthcare provider,” which covers entire workplaces within the healthcare industry. Noting that the definition of health provider under the FMLA typically applies to clinicians, not to the people who work with them (such as administrative employees), the court invalidated the definition as overly broad. It is not clear from the decision what definition would apply following the court’s decision, though it probably would be the Family Medical Leave Act’s general description of “healthcare provider,” which only includes certain professionals such as physicians and psychiatrists (and not other clinical workers such as most nurses and other hospital workers).

Finally, the court invalidated rules requiring employer consent for intermittent leave and advance documentation of the need for leave – items that have not affected employers much, as few employers would deny leave when an employee seems to need it under the new law.

The court’s first conclusion is a bombshell, apparently requiring employers to provide paid leave even when they have laid employees off for lack of work or shut down operations due to a slowdown or local order. The decision could also seriously affect healthcare employers, who have prepared for the continuing pandemic (and the current surge) while relying for months on the Department regulations.

The Department of Labor will certainly appeal and request a stay of the trial court order, which should keep the decision from affecting leave throughout the country – at least immediately. But employers should keep a close eye on developments, and the Department’s coronavirus website (https://www.dol.gov/agencies/whd/pandemic/ffcra-questions), as the pandemic continues.

Shelter at Home Qualifies: Regulations Issued for Emergency Paid Sick Leave and Extended Family Care

The U.S. Department of Labor has adopted initial regulations providing guidance under the Families First Coronavirus Response Act Emergency Paid Sick Leave and Extended Family and Medical Leave benefits. The text of the rules can be viewed here.

Apart from a determination that shelter-at-home orders may qualify employees for benefits, the rules largely follow prior guidance on issues such as leave rights, small employer exemption criteria, benefit calculation, and eligibility. It also contains useful definitions and other important points, such as:

- Most significant (and unexpected): Employees are eligible for Emergency Paid Sick Leave benefits when they must stay home due to a state or local "shelter at home" order, or when certain classes of people (such as those over a certain age) are advised to stay home. (Contrary to most expectations, this qualifies as a "quarantine or isolation order" under the FFCRA despite contrary federal definitions.)

Note: "Essential Businesses" and employers maintaining "Minimum Activities" are likely to argue that their employees are not prevented from working under these regulations, as workers are permitted to travel for such activity, unless an employee falls within a group specifically advised to remain at home.

- (Layoffs not covered): Benefits are not available when an employee has been laid off; a stay-at-home or similar order must "cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order." Similarly, benefits are not available "where the Employer does not have work for the Employee as a result of the order or other circumstances."

- (Health Care and First Responders): Health Care Providers and Emergency Responders have an expanded definition under the FFCRA, including "anyone employed" at various medical and healthcare related entities. This definition will not apply to other parts of the Family Medical Leave Act.

- (Child Care): Only child care leave can be taken intermittently (in increments agreed with the employer). Leave for other purposes must be taken in whole-day increments until the need for leave is over.

- (Child Care Providers): "Child care provider" need not be a compensated caregiver if it is a friend or family member who regularly cares for an employee's child.

We will continue to review and monitor these regulations, particularly application to state and local government orders. Continuing DOL developments can be viewed at https://www.dol.gov/coronavirus.

Counties Require Employers to Post and Distribute a "Social Distancing Protocol" Before April 3

Various California counties have revised their shelter-at-home orders, placing greater limitations on personal activities and the number of “essential” businesses and activities. These include (for now) San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Sonoma and soon Napa counties.

The limitations still allow a wide range of businesses activities. They also permit almost all businesses to continue “minimum” necessary activity such as securing inventory and property, and performing essential administrative functions such as running payroll and maintaining IT services.

Employers maintaining onsite functions as an “Essential Business” in the affected counties must pay attention to another important part of the revised orders. Before April 3, every Essential Business with activity at its worksite(s) – whether open to the public or not – must adopt and post a “Social Distancing Protocol” explaining steps taken by the business to ensure (when applicable):

• Limiting the number of people who can enter into the facility at any one time to ensure that people in the facility can easily maintain a minimum six-foot distance from one another at all times, except as required to complete the Essential Business activity;

• Designating where lines may form at a facility, marking six-foot increments at a minimum, establishing where individuals should stand to maintain adequate social distancing;

• Providing hand sanitizer, soap and water, or effective disinfectant at or near the entrance of the facility and in other appropriate areas for use by the public and employees, and in locations where there is high-frequency employee interaction with members of the public (e.g. cashiers);

• Providing for contactless payment systems or, if not feasible to do so, the providing for disinfecting all payment portals, pens, and styluses after each use;

• Regularly disinfecting other high-touch surfaces; and

• Posting a sign at the entrance of the facility informing all employees and customers that they should: avoid entering the facility if they have a cough or fever; maintain a minimum six-foot distance from one another; sneeze and cough into one’s elbow; not shake hands or engage in any unnecessary physical contact.

The protocol should also explain any additional social distancing measures implemented by the business, such as those suggested by CDC guidance here.

Copies of the protocol must be posted near entrances in an easily viewable location and a copy must be provided to each employee working at the facility.

Finally, the protocol must model a format provided as an appendix to the revised orders. See Sonoma County “Appendix A,” here. It must be in “substantially” this form, though employers may prepare their own similar format.

One thing is not yet clear: while “Essential Businesses” are required to post the protocol, the revised orders do not expressly apply the requirement to businesses performing only “minimum” necessary activities such as security and core administration. Even if the requirement does not apply, though, minimum activities must still follow “Social Distancing and Hygiene Requirements,” including:

• Maintaining at least six-foot social distancing from individuals who are not part of the same household or living unit;

• Frequently washing hands with soap and water for at least 20 seconds, or using hand sanitizer that is recognized by the Centers for Disease Control and Prevention as effective in combatting COVID-19;

• Covering coughs and sneezes with a tissue or fabric or, if not possible, into the sleeve or elbow (but not into hands); and

• Avoiding all social interaction outside the household when sick with a fever or cough.

Because these appear to be social rather than work-oriented, we recommend that employers performing minimum activities still adopt and post a Social Distancing Protocol applicable to employees.

The current requirements begin at 11:59 p.m. on Tuesday, April 2, and may be enforced by local health or law enforcement personnel.

Copies of the new orders can be viewed at: San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Sonoma. A MS Word version of the model protocol is at Sonoma County’s site, here. A fillable .pdf is at San Mateo County’s site, here.