In a case brought by the New York attorney general, the U.S. District Court for the Southern District of New York has vacated portions of regulations issued by the U.S. Department of Labor (DOL) under the Families First Coronavirus Response Act (FFCRA). It is not yet known whether the DOL will appeal the decision, whether other states will bring similar court actions, or, if they do, whether courts in other jurisdictions will reach the same result as the New York judge.
The opinion struck down the following regulations pertaining to the FFCRA’s employee leave provisions:
- The requirement that an employer have work available for an employee taking leave;
- The definition of health care providers who may be denied leave by their employers;
- The requirement that employers consent to intermittent leave; and
- The requirement that employees provide documentation for leave before taking leave.
The judge let stand the regulations’ ban on intermittent leave for certain qualifying reasons and the substance of the documentation requirement, separate from its timing.
The opinion noted that the work availability requirement could “considerably narrow the statute’s potential scope” due to the decrease in work immediately available for employees who otherwise remain formally employed, because of the COVID-19 emergency.
The implications of the court’s ruling are complicated and may expand paid leave for furloughed employees, permit employees to establish intermittent leave without the employer’s consent, expand leave for more workers who are in the healthcare sector and restrict an employer’s ability to request documentation prior to leave. Due to these potential changes and additional compliance concerns, it is recommended that clients consult with their legal counsel to determine what is best for their organization and situation as it relates to the administration of FFCRA. Employers are also advised to stay updated on developments in these areas to ensure their FFCRA leave policies comply with the law.
