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U.S. District Court for the Southern District of NY Vacates Parts of FFCRA Regulations

August 4, 2020

In April, the New York Attorney General sued the Department of Labor over the DOL’s April 1 rule that told employers how to implement the Families First Coronavirus Response Act  (FFCRA) on the theory the rule "unlawfully narrows" the number of people who are covered by the emergency paid leave law.

 

The rule defines the limits of who qualifies for paid leave and the suit challenged four parts of the rule. On August 3, a New York federal judge agreed and threw out most of the challenged parts of the rule:

 

The four provisions struck down include:

  • The definition of who qualifies for the healthcare provider exemption;

  • The exclusion from benefits of employees whose employers do not have work for them;

  • The requirement that employees secure consent for intermittent leave for certain qualifying reasons; and

  • The requirement that documentation be provided before taking leave.

The court said the DOL exceeded its authority by blocking workers from taking leave under the Families First Coronavirus Response Act (FFCRA) if their employers don't have work for them to perform. The court said that FFCRA benefits are available even when work isn't, contrary to the final rule's work-availability requirement.  The court's ruling is significant because it means FFCRA benefits may be available during furloughs. Under the final rule, FFCRA benefits weren't available then.

 

Additionally, the DOL exceeded its authority and cut off too many workers from benefits with its definition of "health care providers," whom the law explicitly excludes. Because DOL’s regulation Implementing a virus relief law defied the intent of Congress by excluding virtually the entire health-care sector and other employees, the decision vacated the section of the DOL final rule that broadly define health-care exemptions.


Additionally, 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.

 

The regulations, except the four areas discussed above—the timing of documentation, consent for intermittent leave, work-availability requirement and definition of health care provider—remain in place.  However the decision leaves employers left to determine important questions such as what definition of healthcare provider should be used under the FFCRA, and whether employees on furlough or who otherwise do not have work available (regardless of whether the employee is unable to work due to a COVID issue) are eligible for pay.


The Southern District of New York jurisdiction is the New York counties of New York (Manhattan), Bronx, Westchester, Putnam, Rockland, Orange, Dutchess, and Sullivan – and this will create some confusion in these counties as the decision will likely be appealed.

 

Given the DOL likely appeal the decision, employers who receive leave requests should keep in mind that these parts of the DOL regulations have now been vacated by this one court and would do well to proceed using this ruling's limitations.  Perhaps most importantly, health care providers should consider the impact of the decision before excluding certain employees from the benefits of paid FFCRA leave. 

 

These benefits are currently set to expire December 31, 2020.  

 

Please know that while we strive for relevant and accurate information, this remains a fluid and evolving situation. We are not lawyers so please understand the information provided here does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only.

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