A federal district court judge in New York has struck down key regulations implementing the Families First Coronavirus Response Act (FFCRA).
Background:
The FFCRA requires employers with fewer than 500 employees to provide paid leave to employees who are unable to work or telework because of certain COVID-related reasons. The law requires two types of paid leave: Emergency Paid Sick Leave and Public Health Emergency Leave. Under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the leave requirements. The law went into effect on April 1, 2020 and expires on December 31, 2020.
On April 1, 2020, the Department of Labor (DOL) issued regulations that defined key terms and made important clarifications to the law, including the following:
- Work-Availability Requirement: Entitled employees to FFCRA leave only if there was work available to them. For instance, if the employer sends employees home and stops paying them because of a lack of work, the employee wouldn't be eligible for FFCRA leave under the regulations;
- Definition of Healthcare Provider: Defined healthcare provider as anyone employed at any doctor's office, hospital, health care center, clinic, postsecondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity;
- Intermittent Leave: Allowed employees to take leave intermittently for certain qualifying reasons but only if the employer agrees to it;
- Documentation: Required that prior to taking FFCRA leave, employees must submit certain documentation to the employer.
Shortly after the regulations were issued, the attorney general for the state of New York filed a lawsuit challenging each of the four provisions above, arguing that they unduly restrict FFCRA leave.
New York District Court Ruling:
Work-Availability Requirement:
On August 3, 2020, a federal district court judge in New York struck down the regulations' work-availability requirement, finding that the explanation the DOL provided in the regulations for the requirement is insufficient.
Definition of Healthcare Provider:
The judge also struck down the regulations' definition of healthcare provider as overly broad because it hinges entirely on the identity of the employer and includes employees whose roles have no connection with providing healthcare services. For instance, an English professor, librarian, or cafeteria manager at a university with a medical school could all be considered "healthcare providers" under the definition.
Intermittent Leave:
The judge ruled that the DOL was within its authority to limit intermittent leave to certain qualifying reasons. However, the judge struck down the part of the provision that required employer consent for employees to take the leave intermittently.
Documentation:
The judge struck down the requirement that documentation be provided prior to the employee taking the leave.
Remaining Regulations Not Impacted:
All other provisions of the FFCRA regulations stand.
Compliance Recommendations:
The judge's ruling creates confusion about how to apply the rules for paid leave under the FFCRA. For instance, it's unclear whether the ruling applies to just employers in the Southern District of New York (the counties of New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan) or employers nationally or how employers should handle leave that was previously denied based on the struck-down regulations. The ruling itself doesn't address these issues, and the DOL hasn't responded to the ruling yet. All employers should monitor the situation closely and discuss the implications of the ruling with their legal counsel. Please contact your dedicated service professional with any questions.