NY Court Strikes Down Portions of the FFCRA

On August 3, 2020, the Federal court for the Southern District of New York struck down four segments of the Families First Coronavirus Response Act’s (FFCRA) interim final rules on paid leave.

The court ruled that with regard to the below, the US  Department of Labor (USDOL) exceeded the bounds of its authority:

  1. The Work Availability Standard: If an employee wanted to take paid sick leave for the following reasons, the regulations stated their employer had to have work available for them to do:
    • The employee is subject to a government quarantine/isolation order.
    • The employee is caring for an individual subject to a government quarantine/isolation order or healthcare provider directive for COVID-19-related reasons.
    • The employee cares for a child whose school has closed or whose childcare provider is unavailable due to COVID-19.

Similarly, to qualify for expanded leave to care for a child subject to a school or childcare closure, the rules said that the parent needed to be actively working.

The Court ruled that employees are eligible for FFCRA leave regardless if their employer has work for them to do at the time. Therefore, employees on “furlough” may be eligible to take paid sick-leave during their furloughed period.

  1. The Definition of Healthcare Provider: The court struck down the very expansive definition in the rule which is  significant because employers may exclude “providers” from FFCRA leave benefits. Until the DOL redefines the term, employers are left with the definition in the FFCRA statute.
  1. Intermittent Leave—Currently, employees are allowed to take FFCRA paid sick leave and FMLA leave on an intermittent basis for qualifying events that do not pose a public health risk (such as caring for a child whose school is closed). However, the interim final rule required employees to obtain employer permission first. The court ruling strikes down the permission requirement part of the rule’s intermittent leave provisions.
  1. Documentation Requirements—The interim final rules require employees to provide documentation to substantiate their need for either type of FFCRA leave. The court found that the documentation requirement is not unreasonable, but employers cannot demand that employees produce it as a condition of taking the leave.  Instead, employees must provide required documentation as soon as practical, even if that is after their leave commences.

Businesses with fewer than 500 employees are subject to the FFCRA paid leave requirements.  Employers should review their existing paid leave practices to see if any need to change as a result of the Court’s ruling.