NY Gets Federal COVID-19 Leave Restrictions Struck Down

By Braden Campbell
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Law360 (August 3, 2020, 11:20 AM EDT) -- A New York federal judge on Monday wiped out parts of the U.S. Department of Labor's rule restricting who can take paid coronavirus leave under a March virus relief law, siding with the New York attorney general and dealing a blow to the Trump administration.

The U.S. Department of Labor exceeded its authority with its rule limiting eligibility for paid coronavirus leave, a New York federal judge said Monday. (Andrew Harrer/Bloomberg via Getty Images)

The DOL exceeded its authority by blocking workers from taking leave under the Families First Coronavirus Response Act if their employers don't have work for them to perform, and cut off too many workers with its definition of "health care providers," whom the law explicitly excludes, U.S. District Judge Paul Oetken said.

The judge also partially vacated provisions limiting "intermittent" leave and requiring workers to document their reasons for taking time off. He said the "considerable pressure" the agency faced to quickly issue the rule does not excuse its lapses.

"This extraordinary crisis has required public and private entities alike to act decisively and swiftly in the face of massive uncertainty, and often with grave consequence," Judge Oetken said. "But as much as this moment calls for flexibility and ingenuity, it also calls for renewed attention to the guardrails of our government. Here, DOL jumped the rail."

Monday's ruling hands Attorney General Letitia James a near-complete victory in her office's April lawsuit challenging the DOL's interpretation of FFCRA, which makes small and midsize employers provide workers short- and long-term paid time off if they can't work for reasons related to the pandemic. For example, workers who contract coronavirus or have to take care of a child whose school has closed can take off.

James called the decision "a major victory for workers across New York and our entire nation" in a tweet Monday.

The DOL's April 1 rule tells employers how to implement FFCRA, including by defining the limits of who qualifies for paid leave. James' suit challenges four parts of the rule: A provision denying workers benefits when their employers "do … not have work" for them; the DOL's interpretation of the law's exclusion for health care providers; the rule's limits on taking intermittent leave; and its documentation requirements.

Judge Oetken said the work availability exclusion is illegal under the U.S. Supreme Court's Chevron ruling, which directs courts to uphold only "reasonable" regulations that clear up legal gaps or ambiguities. The DOL argued that FFCRA language conferring leave rights on workers who are "unable to work (or telework) due to" one of six coronavirus-related factors leaves out workers whose employers have no work to assign. But this unreasonably subjugates the six explicit triggers, Judge Oetken said.

"That differential treatment is manifestly contrary to the statute's language," Judge Oetken said.

And the DOL went too far by defining health care providers as "anyone employed at" a doctor's office, hospital, medical school or a number of other facilities "where medical services are provided," as well as their operations contractors and makers of medical products, Judge Oetken said. That definition is "vastly overbroad" because it ropes in English professors at universities with medical schools, among others who can't reasonably be considered health care providers, he said.

The rule's intermittent leave provisions are also unreasonable under Chevron, the judge said. Under the rule, workers can take less than their full leave allotment only when they don't pose an infection risk, and only then when the worker and their employer have agreed to intermittent leave. A worker who has COVID-19 symptoms and is seeking a diagnosis could not take intermittent leave, while a worker who has to care for their child could with permission, for example.

The DOL had good reason to block workers from taking brief bouts of leave while they still pose an infection risk, Judge Oetken said. But the agency "utterly fails to explain why employer consent is required for the remaining qualifying conditions," Judge Oetken said, nixing the requirement that workers get permission before taking intermittent leave for these reasons.

Judge Oetken also vacated the DOL's requirement that workers provide documentation attesting to their need for leave before taking it. This rule is in "unambiguous conflict" with a FFCRA provision requiring advance notice "as is practicable" only when "the necessity for [leave] is foreseeable," he said.

The U.S. Attorney's Office for the Southern District of New York, which represents the DOL, did not immediately respond Monday to a request for comment.

New York is represented by Letitia James, Matthew Colangelo, Eric R. Haren, Fiona J. Kaye and Daniela L. Nogueira of the Office of the New York State Attorney General.

The DOL is represented by Jennifer Jude and Stephen Cha-Kim of the U.S. Attorney's Office for the Southern District of New York.

The case is State of New York v. U.S. Department of Labor, case number 1:20-cv-03020, in the U.S. District Court for the Southern District of New York.

--Editing by Rebecca Flanagan.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

State of New York v. United States Department of Labor et al

Case Number



New York Southern

Nature of Suit

Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision


J. Paul Oetken

Date Filed

April 14, 2020


Government Agencies

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