What a mess.
And I’m not just talking about the cleanup from Tropical Storm Isaias. Hasn’t been much fun without power, internet or reliable cell service. (I hope everyone is staying safe and gets power soon — my town’s projection was 5-7 days!)
Heck, it’s been tough to even do a blog post about a very important New York federal court decision (which you can download here) this week ostensibly striking down several FFCRA rules.
Seemingly every law firm is doing its own analysis so I’m not going to do a complete deep dive in it. (Besides, my internet is fleeting).
Among the good recaps, I’d recommend Jeff Nowak’s FMLA Insights’ excellent summary here.
The issue for employers is that there are plenty of unanswered questions from the decision leaving employers with much uncertainty now. In fact, employers should definitely talk with their counsel about what this means for their business. My firm will be producing a summary on its blog in the next day or two as well but it’s not going to have all the answers because, well, answers are hard to come by.
But here are some preliminary takeaways (and questions) from the decision from my perspective.
- What’s the Scope and Impact? The decision is not necessarily the model of clarity. Does it apply to just New York employers? Nationwide employers? There are arguments to be made for both. Moreover, is this going to be a final decision or is the Department of Labor going to seek an immediate stay and appeal? What will the Second Circuit (of which, Connecticut is a part of) do? One thing is for certain — remember that the FFCRA (which has both the emergency paid sick leave and the FMLA+ provisions) only applies to employers with less than 500 employees. For big companies, the decision isn’t really applicable.
- What’s up with Intermittent Leave? This is a big open question from the court’s decision. The decision said that the employer consent requirement from the DOL regulations is an overreach for implementation of intermittent FMLA+ (that is, to care for a child where there is no suitable child care). Does that mean an employer has to agree to dozens of such requests at the same time? What about schools and teachers? How does this impact the FMLA school regulations? If the employee can work from home, can the employer simply deny the leave? Can the employer offer to provide suitable child care to avoid granting the leave altogether?
- For “Health Care Providers”, What Employees Can Still be Exempted? Under the DOL regulations, a health care provider could deny FFCRA coverage to virtually all of its employees. But the court’s decision said, in essence, nope. The court added, for good measure, “the Final Rule’s definition is vastly overbroad . . . in that it includes employees whose roles bear no nexus whatsoever to the provision of healthcare services.” What will happen next? Will the DOL come up with a revised rule? Will it appeal? Until then, health care providers will need to tread carefully on its exemption.
- Are Furloughed Employees Now Eligible Again? One of the key regulations has been that an employer must have work available for the employee in order for the employee to be eligible for the leave. As Jeff rightly pointed out in his post, this is a big deal. “The Court’s decision to strike these work availability requirements opens the door for claims of leave by employees who are furloughed or temporarily laid off or whose employers have had to temporarily cease operations under state or local orders, or due to economic circumstances during the pandemic. [This ruling also likely blows up DOL FAQs 23-28, all of which deal with the employee’s inability to take FFCRA leave when there is a business closure or reduction in hours.]” Does this mean employees should get retroactive eligibility? What about those on Shared Work programs in Connecticut? Should employers just terminate their furloughed employees given this risk? All good questions for employers and their lawyers.
- What Comes Next? So many potential ways this could go. Will the DOL just issue new regulations? One would think so, but when? In what detail? Will this be retroactive? That seems unlikely but no doubt someone will make this argument.
For employers, this is a deep breath time. In addition to dealing with the massive power outages in the state this week, this decision is no doubt going to cause lots of heartburn. I think patience and thoughtfulness are key; we’re likely to see some further clarifications in the next few weeks and additional guidance from attorneys after all the ramifications have been dealt with. And some clarity on whether this is going to be stayed and appealed is expected too. For schools, there is a still a bit of time to decide how (or if) this deicision impact classes.