Judge Strikes Parts of DOL Regs on Emergency FMLA Expansion

By Bill Wright

Today, a U.S. District Court judge ruled that parts of the Department of Labor regulations on Emergency FMLA Expansion are contrary to statute. The ruling was part of a dispute between the State of New York and the Trump administration. New York argued that the DOL regulations improperly limited the employees eligible for extended Family and Medical Leave under the Families First Coronavirus Response Act.  

The Emergency FMLA Expansion allowed employees of covered employers to take FMLA for any of a series of COVID-19-related causes: being subject to a local isolation order, self-isolating under a doctor’s orders, having COVID-19 symptoms and seeking a diagnosis, caring for someone subject to an isolation order, caring for a child whose school or childcare is closed due to COVID, etc. 

  • The DOL regulations permitted eligible employees to take FMLA only when their employers had work for them to do. The court ruled this was arbitrary. The court rejected the DOL’s argument that leave “because of” a COVID-related condition necessarily implied the employers had work for the employees to do.
  • The court rejected the DOL’s interpretation of the statute’s exclusion of healthcare providers. The statute had excluded healthcare providers, as defined in the classic FMLA, from expanded FMLA coverage. The DOL regulations expanded the exclusion to anyone employed at any institution or site where medical services are provided. The court ruled the DOL regulation was “vastly overbroad.”
  • The statute says nothing about intermittent leave, but the DOL regulations permit intermittent leave for childcare, though only with the employers’ permission. The court ruled that the DOL could not require employees to get their employers’ permission. 
  • Finally, the statute requires employees to provide their employers with notice when the need for extended FMLA is foreseeable. The DOL regulations added a requirement that the employees provide documentation of the need for leave before taking leave. The court ruled the DOL documentation requirement was a barrier to taking leave, one that Congress had not intended.

As a consequence of this ruling, employers may not rely on these specific DOL regulations. We expect the DOL will appeal this ruling, but, in the meantime, the policies and procedures employers have attempted to implement in recent months are once again in question. The case is New York v. U.S. Dept. of Labor, 20-cv-03020-JPO (S.D.N.Y. August 3, 2020).