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The Families First Coronavirus Response Act (Coronavirus Response Act) was enacted to allow employees to take paid leave in certain qualifying conditions in relation to the COVID-19 pandemic.  Generally, an employee may take 2 weeks of medical leave and be paid 100% of his or her salary when he or she is unable to work for the following purposes: to diagnose a COVID-19 infection, a government mandated quarantine of the individual because of COVID-19, sickness due to a COVID-19 infection as diagnosed by a medical provider, or care for a person who is infected with COVID-19.  Additionally, FFCRA permits an employee to take up to 12 weeks of leave at 2/3 his or her wages to take care of a child when day-cares or other facilities are closed because of COVID-19.  The employer’s burden is offset because the employer may take a dollar-for-dollar tax credit for all payments made pursuant to this section.  A recent federal case in New York struck two common sense requirements in the FFCRA to the detriment of employers.  Employers may be burdened by the change in law until the law is ultimately reversed on appeal or the Department of Labor enacts corrective rules.  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims.  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

A previous article described the recent changes in law arising from COVID-19 related legislation.  The FFCRA modified the Family and Medical Leave Act (FMLA) to require all employers of less than 500 employees to provide paid leave when an employee cannot work because of certain qualifying COVID-19 situations.  Generally, Coronavirus Response Act leave falls into two categories.  The first is two weeks of leave related to the actual treatment of COVID-19.  The second is up to 12 weeks of leave which an employee may take because the employee’s children need care and the daycare or school which the child would normally go to is closed because of COVID-19.

This article is concerned with two rules which were stricken by the recent case, New York v. United States Dep’t of Labor, 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).  Before New York’s holding, it was generally believed that an employee who was furloughed because there was no work for him or her would not qualify for any leave.  Logically, one cannot take leave from something that one is not employed to do.  Additionally, the Department of Labor rules specifically required that the employee have work, but become unable to do the work, for three out of six qualifying conditions.  29 C.F.R. § 826.20(a)(2) (subject to a quarantine order), (6) (to take care of a person with COVID-16), (9) (to take care of a child when no childcare is available because of COVID-19).

The second rule relates to “intermittent leave.”  According to Department of Labor rules, an employee must take his or her leave in blocks based upon the reason for the leave.  The logical reason for this rule should be manifest – if an employee is sick with COVID-19, the employee should not be returning to work until he or she has recovered.  The Department of Labor provided a special rule that allowed an employer and employee to agree to intermittent leave when the reason for the intermittent leave was to take care of children.  Intermittent leave makes sense for this category of leave, because the need for an employee’s childcare can change over time.  The requirement that the employer agree to the intermittent leave is important because otherwise, the employee would have the power to select which dates that he or she would be taking leave or working.  Such unilateral determinations by the employee could potentially upset the regular operation of a business.

New York v. United States Dep’t of Labor, 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020), struck down both the requirement that an employee have work to do and that both an employer and employee must consent prior to taking leave.  In New York, the Department of Labor took the position that the prerequisite that the employee have work to do prior to qualifying for any leave was within the Coronavirus Response Act itself, and as such, the rules that it enacted concerning the Coronavirus Response Act.  The court disagreed with the Department of Labor’s interpretation, and ultimately struck down the requirement which was specifically placed in some of the rules because there was no justification for differentiating between these qualifying bases for leave.  Similarly, the court struck the requirement that intermittent leave be agreed to with the employer because it was “unreasoned.”

The New York federal court decision might lead to bizarre results.  Employees might receive paid leave if they cannot work because of a qualifying condition, even if they were not scheduled to work or there is no work for them to do.  The qualifying condition which prevented the employee from working effectively becomes the instrument by which the employee can receive his wages.

New York’s interpretation of the work requirement rule has a disproportionate impact on those businesses which are unable to operate at full capacity during the pandemic.  Consider the hypothetical situation of a business operating as a movie theater.  The hypothetical movie theater closed in the beginning of the COVID-19 pandemic, but kept a handful of employees to maintain the premises. The remaining employees were taken off the schedule until it was safe to reopen the business.  Weeks after being furloughed, an employee could assert that he or she could not work because the employee’s child’s daycare shut down because of COVID-19.  The New York holding could require that employee to receive leave, even though the hypothetical employee had no work from which the employee could take leave.  This could require the movie theater to pay 2/3 of the employee’s regular wages for the next 12 weeks.  29 C.F.R. § 826.20 (a)(1)(v) (“Employee is caring for his or her Son or Daughter whose School or Place of Care has been closed for a period of time, whether by order of a State or local official or authority or at the decision of the individual School or Place of Care, or the Child Care Provider of such Son or Daughter is unavailable, for reasons related to COVID–19”); 29 C.F.R. § 826.22(b) (describing that qualifying employees shall be paid 2/3 of their wages); 29 C.F.R. § 826.60(a) (providing up to 12 weeks childcare leave).

Because of the ramifications of New York, the case will likely be appealed or the Department of Labor will issue new regulations to address the shortcomings in the current regulations.  Peter Mavrick is a Fort Lauderdale employment lawyer.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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