Federal Court Rejects Key Provisions of FFCRA Leave Regulation

By William Pokorny and Tracey Truesdale - Franczek P.C.

August 3, 2020

On August 3rd, the U.S. District Court for the Southern District of New York struck down four key provisions of the U.S. Department of Labor’s (“DOL”) regulation implementing the paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”). The ruling came in a lawsuit filed by the State of New York, which argued that the regulations unlawfully narrow the scope of leave available to New York workers, to the State’s detriment.

In a very pro-employee ruling, the court found that the DOL exceeded its authority under the statute by:
•    Declaring that an employer is not obligated to provide FFCRA leave to an employee if the employer does not otherwise have work for the employee;
•    Broadly defining “health care provider” to include virtually all employees of employers that provide health care services;
•    Allowing employees to use intermittent leave in certain cases only if their employer agrees; and
•    Requiring employees to provide documentation “prior to taking leave” indicating their reason for leave, the duration of the requested leave, and, where relevant, the authority for the isolation or quarantine order qualifying them for leave.

The FFCRA applies to private employers with fewer than 500 employees, as well as state and local government agencies, including public school districts. It provides employees with up to two weeks of paid sick leave for reasons related to COVID-19, and up to twelve weeks of paid leave to care for a child whose school is closed or child care is unavailable due to the pandemic.
The ruling applies only to the four challenged aspects of the DOL’s regulation. The other provisions of the regulation remain in effect.

The federal government is highly likely to appeal the ruling, and it is possible that the Second Circuit Court of Appeals may keep the stricken provisions in effect pending review. However, unless and until that occurs, employers may face legal risk if they rely on one or more of the invalidated provisions to deny leave to an otherwise eligible employee. This places employers in a difficult position because the ruling does not supply alternative definitions or other guidance to fill the gaps left by the struck-down provisions. Covered employers are strongly encouraged to consult with their legal counsel regarding the implications of this ruling.