Federal Judge Expands Coronavirus Leave Availability

Garrett Wozniak
Garrett Wozniak

This past April, the Department of Labor issued temporary regulations regarding paid leave under the Families First Coronavirus Response Act (FFCRA).  The regulations addressed many issues raised by the FFCRA and answered or provided clarification on a number of COVID-leave-related topics.  On August 3, 2020, a federal judge in New York invalidated some of the DOL’s regulations and as a result has expanded FFCRA leave.  New York v. United States Dep’t of Labor, 20-cv-3020 (Aug. 3, 2020).  The most significant impact of the ruling is the expansion of FFCRA leave to employees whose employers do not have work available. 

Impact of lack of work – the DOL said that employees were not eligible for FFCRA leave if the employer did not have work available for the employee.  Following the federal court ruling, employees who satisfy the FFCRA leave criteria are eligible for leave even if an employer does not have work available.  If you are a business who has closed or furloughed employees, for example, employees may take leave for a FFCRA qualifying reason.

Intermittent leave – filling a void in the FFCRA, the DOL said that employer agreement was required for intermittent leave and that leave could only be taken intermittently in certain situations.  The court disagreed with the DOL’s gap-filling.  The result is that employees may take FFCRA leave intermittently if teleworking or for the child care / school closure reason, and employer agreement is not required.

Documentation – the DOL previously explained the documentation that employers should obtain to substantiate FFCRA leave requests.  Employers were previously advised to accept verbal notices and then follow up with written documentation if such documentation could not be provided in advance.  The court’s ruling makes clear that employers cannot require documentation prior to employee use of FFCRA leave.  Verbal notice is sufficient; employers can then follow up to seek documentation.

Health care provider definition – the DOL regulations broadly defined “health care provider,” which expanded the types of workers who could be exempted from the FFCRA leave requirements.  The court ruled that the DOL’s definition was overly broad.  As a result, more employees are eligible for FFCRA leave.  The meaning of “health care provider” is limited to the definition in the FMLA (i.e., doctors, nurses, and others who practice medicine).

This decision affects employers in the Southern District of New York.  We’ll continue to monitor the ruling, whether the DOL appeals, and whether the DOL amends its FFCRA rules. 

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