In April 2020, the State of New York sued the U.S. Department of Labor (DOL), claiming it “unlawfully narrows workers’ eligibility for emergency family leave and paid sick leave guaranteed by the [FFCRA].”
Earlier this week, a federal judge for the Southern District for New York agreed with the State of New York and struck down four main regulations:
The DOL regulations provide that paid sick and emergency family leave under the FFCRA is only applicable if the employer has work available for the employee;
The broad definition of “health care provider,” which permits health care employers to decide which of its employees to exclude from FFCRA coverage;
The requirement that employees obtain employer consent to use FFCRA leave intermittently for certain qualifying reasons; and
The requirement that employees first provide documentation supporting their need for FFCRA leave before confirming eligibility.
What does this mean for employers?
Unless and until this ruling is appealed and overturned or the DOL amends its regulations, employers should not rely on these four DOL regulations without first seeking counsel. Instead, the following takeaways are generally applicable:
The work-availability requirement
In its Final Rule, the DOL indicates that employees cannot get FFCRA leave benefits if their employers do not have work available for them. The State of New York argued, and the court agreed, that the DOL’s position was not consistent with the actual language if the FFCRA. This means an employee who is not scheduled to work due to furlough, business closure, or otherwise is eligible for FFCRA leave benefits.
Definition of “Health Care Provider”
In its Final Rule, the DOL allows an employer to exclude from FFCRA eligibility health care providers and basically anyone associated with a health care provider. The State of New York argued, and the court agreed, that this definition was too broad. This means more employees will be eligible for FFCRA leave benefits, and generally only those who are capable of providing healthcare services, such as doctors and those who practice medicine, should be excluded from coverage.
In its Final Rule, the DOL indicates an employee must obtain employer permission to take intermittent leave while teleworking. Moreover, onsite employees may only take intermittent leave with employer permission to care for a child whose school or place of care is closed, or child care provider is unavailable. The State of New York argued, and the court agreed, that the DOL exceeded its authority. The court did, however, agree with the DOL that intermittent leave should be limited to situations that do not risk the health of others. This means employees working remotely can take intermittent FFCRA leave, and those onsite can take intermittent leave to care for a child whose school or place of care is closed, or child care provider is unavailable, and they do not need employer permission.
In its Final Rule, the DOL requires employees to submit documentation supporting the need for leave to their employer prior to taking FFCRA leave. The State of New York argued, and the court agreed, that this requirement is inconsistent with the FFCRA. This means employers can still require documentation, but not as a precondition to FFCRA leave.
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