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Tuesday, August 4, 2020

Coronavirus Update 8-4-2020: NY federal judge invalidates key parts of FFCRA regulations


Yesterday, a New York federal judge issued an order invalidating several key aspects of the Department of Labor's regulations interpreting the paid sick leave and expanded FMLA provisions of the Families First Coronavirus Response Act.

Judge J. Paul Oetken of the United States District Court for the Southern District of New York found that the DOL exceeded its authority in enacting each of the following of the DOL's regulatory interpretations of the FFCRA:

  1. That an employer that does not have work available is excused from providing FFCRA leave.
  2. That an employer can impose a broad definition of "health care provider" to include any employee who is essential to maintaining a functioning healthcare system during the pandemic.
  3. That an employer must consent and agree to an employee taking intermittent leave for a childcare-related FFCRA absence.
  4. That an employee must provide notice as a precondition for taking FFCRA leave.

What does the mean? At least in the Southern District of New York:

  1. Covered employers must provide FFCRA leave to employees even if work is not otherwise available (e.g., to furloughed employees).
  2. Employees who are not "capable of providing healthcare services" cannot qualify as a health care provider exempt from the FFCRA.
  3. Employers cannot restrict or limit employees from choosing to take intermittent FFCRA leave for childcare-related absences.
  4. Employers cannot require notice as a precondition for taking FFCRA leave and instead must allow employees to provide notice as practical for emergency FMLA leave and after the first workday (or portion thereof) for paid sick leave.

What doesn't this mean? Do employers outside the Southern District of New York have to follow this order? There is no indication that this order reaches beyond the boundaries of that judicial district. Regardless, this is an interesting and noteworthy development, particularly if other states follow suit and try to convince other courts similarly, or if the DOL modifies it regulations as a result.

* Image by jacqueline macou from Pixabay