Fiscal Report
Public Education's Point of Reference for Making Educated Decisions

New York Challenges Provisions of the DOL Regulations

As a result of the COVID-19 crisis, Congress passed the Families First Coronavirus Response Act (FFCRA), which requires that all public employers provide employees with two leave types―Emergency Paid Sick Leave (EPSL) and an amendment to Title I of the Family and Medical Leave Act (FMLA), Expanded Family and Medical Leave-Emergency Family and Medical Leave (EFML). Recently the state of New York challenged provisions of the Department of Labor’s (DOL) final ruling on EPSL and EFML in the court case State of New York vs. United States Department of Labor, et al., No. 1:20-cv-03020-JPO, which included the following issues:

Issue #1: Work Availability

  • Final Rule: The DOL’s Final Rule indicates that, if work ceases due to a shutdown and an employer does not have work for the employee to do, leave is not granted.
  • Challenge: The state of New York argues that if the lack of work is due to the pandemic, leave should still apply. For example, one of the arguments raised was that if a teacher is on paid leave and the school shuts down, the teacher is still on paid leave and the employer continues to pay the teacher paid leave without the deduction of accrued leave or FFCRA entitlements. Another argument is that without paid leave, employees will go to work sick or face financial consequences, which will impact public health and state tax receipts.
  • Court Decision: The United States Southern District of New York (Court) ruled in favor of the state of New York and found that the work-availability requirement in the DOL’s Final Rule was not a permissible interpretation of the statute. 

Issue #2: Health Care Providers 

  • Final Rule: The DOL’s Final Rule uses a broad definition for “health care providers” (those exempt from the leave provisions) that is based upon the employer, and not the employee. Simply stated, under the current Final Rule, “an English professor, librarian, or cafeteria manager at a university with a medical school would be considered a health care provider.”
  • Challenge: The state of New York argues that the definition should be based on the employee’s assigned duties—not on the employer—and should only include those who are providing health care services to patients.
  • Court Decision: The Court ruled in favor of the state of New York and found that the definition of “health care provider” was too broad in that it included employees whose roles do not involve providing healthcare services except for by the identity of their employers. 

Issue #3: Intermittent Leave 

  • Final Rule: The DOL’s Final Rule permits “employees to take Paid Sick Leave or Expanded Family and Medical Leave intermittently only if the employer and employee agree.” Furthermore, the Final Rule indicates that the employee must use the permitted days of leave consecutively until the employee no longer has a qualifying reason to take paid sick leave.
  • Challenge: The state of New York argues that the statutes within the FFCRA do not address intermittent leave, which leaves a statutory gap. The state of New York’s interpretation of the Final Rule is that it requires employees to take any qualifying leave consecutively. The state of New York argues that if an employee uses part of the leave and has a different qualifying reason to need leave in the future, the remaining time should still be available to that employee. 
  • Court Decision: The Court granted and denied in part the requirement that employees secure consent for intermittent leave for certain qualifying reasons. The Court confirmed that the leave does not need to be taken in a single block of time and will not be forfeited if not used by the employee. Rather, leaves may be taken in separate blocks for different qualifying reasons as long as the employee has leave remaining. The Court agreed with the DOL that some leave may be considered intermittent that may affect the public health (e.g., an employee experiencing symptoms of COVID-19). Essentially, an employee may not return to work intermittently as it would create a risk in transmitting the virus. 

Issue #4: Documentation

  • Final Rule: The DOL’s Final Rule requires that employees submit to their employer―prior to taking leave―prescribed documentation which includes the reason for leave, the duration of the requested leave, and the authority for the isolation or quarantine order qualifying them for leave. 
  • Challenge: The state of New York argues that the Final Rule demonstrates inconsistencies regarding documentation as required by the FFCRA and that it does not consider unforeseeable needs for leave.
  • Court Decision: The Court found that the requirement of employees to provide the required documentation before taking leave is inconsistent with the timing set in the FFCRA notice provisions wherein it notes, with respect to employee notice, that, “After 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.” The Court emphasized that “the substantive aspects of the regulations documentation requirements, as opposed to the ‘temporal aspect’ described above, remain in effect.”

While the decisions by the Court do not affect states outside the New York City area, we can expect to see similar issues brought before our courts in the state of California. Based on the Court’s decision, we can expect to see changes to the ruling that may impact employees currently on leave. Local educational agencies should review current FFCRA policies and procedures and prepare to make changes should a revised ruling be issued. In the meantime, consult legal counsel if your leave policies are challenged based on this decision.