Federal Court Strikes Down Portions of FFCRA Regulations

August 05, 2020
By: Chris Gantt-Sorenson and Perry MacLennan

On August 3, a New York federal judge struck down several provisions of the Department of Labor’s (DOL) Final Rule applicable to both types of leave under the Families First Coronavirus Response Act (FFCRA) – the Emergency Paid Sick Leave (EPSL) and the Emergency Family Medical Leave Act (EFMLEA).

This is the first legal challenge to the FFCRA but it does not mean employers subject to the FFCRA should adjust any of the compliance practices they have been following.
 
The state of New York brought a suit against the DOL challenging four aspects of the Rule on the grounds that the regulations do not comport with Congress’ intent under the FFCRA and requesting the court to sever the challenged provisions. The court granted the state’s right to sue due to the impact on its tax revenue.
 
The challenges were to the DOL’s interpretations of the FFCRA in its Final Rule. Specifically, the state asserted DOL’s interpretation of the FFCRA to limit eligibility of EPSL benefits to the six EPSL reasons was not supported by the FFCRA and could include other reasons, such as the employer’s inability to provide work. Secondly, the state contended the DOL should not have expanded the definition to include entities that provide healthcare but instead limit the exception for FFCRA compliance to those employees who provide healthcare. The state contended Congress drafted the FFCRA so as to require the employee requesting leave be the “health care provider” for the exception to apply rather than the exception applying to an entity that provides healthcare and all of its employees, whether health care providers or not. The state also objected to the DOL’s Rule permitting intermittent leave to be taken in increments rather than a single block and employers to require their consent to any request for intermittent leave if the employee otherwise meets the requirements under the law. Finally, the state objected to the DOL’s additional documentation requirements beyond those in the FFCRA that placed an unreasonable burden on employees to provide documentation before the need to leave arose. 
 
The New York District Court ruled with the state on all matters except the DOL’s interpretation of intermittent leave.  The court agreed with the DOL’s interpretation that leave must be taken in a single block for any EPSL reason pertaining to risk of infection when the return of an employee to work before the leave expired could potentially expose others. However, the court found the Rule’s requirement of an employer’s consent to the use of intermittent leave was not enforceable because it is unreasonable.
 
The Court’s Order will likely be appealed and employers and businesses should not change any of their practices regarding the FFCRA at this time. We will continue to provide updates on this issue.
 
If you have questions about this topic or other employment law matters, please contact Chris, Perry, or the HSB Employment Law practice team.

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