Employers in real estate and construction with fewer than 500 employees are required to provide leave to employees who are unable to work because of the pandemic under the Families First Coronavirus Response Act (FFCRA). The U.S. Department of Labor (DOL) issued a Final Rule effective April 6, 2020 expanding on the requirements of the FFCRA that would go into effect. Following the publication of the Final Rule, the State of New York sued the DOL in federal district court arguing that several features of the Final Rule exceeded the agency’s authority under the statute. The U.S. District Court for the Southern District of New York, issued an order on August 3, vacating certain provisions of the Final Rule. The open question as a result of the decision is whether it applies only in the state of New York or if it applies nationwide

In light of the court’s decision, employers should consider modifications to their leave policy with regard to the following:

  1. Is an employee eligible for FFCRA leave if the employer doesn’t have work available?

The Final Rule excludes employees from FFCRA leave if their employers do not have work for them. The Court decided that requiring that work be available for an employee in order to take leave is inconsistent with the FFCRA. If this ruling is recognized nationwide, employees who are on a temporary layoff (furlough) or other leave of absence will be eligible for FFCRA leave, even if the employer doesn’t have work for them.

  1. Do employees need an employer’s consent for intermittent leave?

The Final Rule permits “employees to take Paid Sick Leave or Expanded Family and Medical Leave intermittently only if [both] the Employer and employee agree,” but the court determined that to the extent an employee can telework, they may be able to take leave intermittently for illness-related reasons, since there is no public health risk of exposure to others in the workplace. Further, if the reason for the leave is to care for a child whose school or place of care is closed due to COVID-19, the employee can take leave intermittently without the employer’s consent. We recommend that employers consider allowing intermittent leave to employees for reasons that would not cause the spread of infection in the workplace.

  1. Can an employer require documentation before leave?

The Final Rule requires that employees submit to their employer “prior to taking FFCRA leave” certain documentation indicating “their reason for the leave, the duration of the requested leave, and when relevant the authority for the isolation or quarantine order qualifying them for leave.”  However, the FFCRA’s language does not suggest such a requirement. The Court found that the Final Rule’s documentation requirement is unsupported by the statute and struck it down. In light of this decision, we recommend employers consider revising policy to allow employees to submit documentation for a leave after they go on the leave rather than requiring that it be submitted prior to the leave.

The Court did not specifically indicate that its order to vacate the portions of the Final Rule discussed above applies nationwide or if it is limited to New York.  The DOL could voluntarily revise the Final Rule to address the issues raised by the court, appeal the decision to the U.S. Court of Appeals, or decide to announce the agency does not agree with the court’s ruling and refuse to follow it outside of New York.  Until the DOL decides how to proceed, employers are left with the potential of being in violation of the FFCRA if they do not make the above-described changes to their implementation of the FFCRA.  Therefore, until there is further clarification on the significance of the New York court decision, we recommend employers consider modifying their FFCRA leave policy in light of these developments and continue to monitor DOL announcements.

If you have any questions regarding the above recommendations; or other employment-related issues, please reach out to Phyllis Karasov, pkarasov@larkinhoffman.com.