Key to remember: Work availability, intermittent leave, health care provider definition, and documentation provisions of the FFCRA are under fire. While only one court made this move, others may be included in the future.

Applies to: Employers in parts of NY are directly affected at this time. Public employers; private employers with fewer than 500 employees (employers covered by the Families First Coronavirus Response Act). 

Impact to customers: The ruling will result in more employees being entitled to leave, and employers (at least in NY) need to be aware of the change.

Possible impact to JJK products/services: This will be news and could impact the 262M in the future.

Just when we all started getting used to (well, sort of) the regulations implementing the Families First Coronavirus Response Act (FFCRA), the courts have begun to change them. In April, we talked about some members of Congress taking issue regarding some of the new FFCRA regulations. Citing some of those Congressional concerns, at least one federal court moved to vacate some provisions, and the judge agreed. Keep in mind that this ruling applies only to the southern district of New York at this time. Should the ruling be appealed, it could have greater reach.

In the case, the State of New York argued that the U.S. Department of Labor (DOL) overstepped its authority in interpreting the FFCRA with its regulations. Specifically, NY found flaws regarding four areas:

• Employees may be denied FFCRA leave if the employer – for any reason – does not have work for the employee. This imposed a new “work availability” requirement, even though the law did not contain such a restriction. The result is that employees are entitled to the leave even if the employer does not have work available, such as during a furlough. 
• FFCRA leave may be denied to a health care provider, but the regulations broadened the definition of a health care provider. It was supposed to reflect the definition found in the FMLA but included many others, such as a cashier at a hospital gift shop. The result is that more employees are entitled to the FFCRA leave. 
• Intermittent FFCRA leave is allowed only when the employer agrees to it. The statute didn’t talk about intermittent leave, so the DOL decided to address it. The court indicated that employees may take intermittent FFCRA leave except where doing so would put others at risk. The result is that employees may take FFCRA leave intermittently without employer agreement, but this could be restricted where employees report to a worksite, as opposed to working from home. 
• Employees may take FFCRA leave if they provide documentation before leave. Again, this provision was not in the law, but the regulations added it. The result is that employees need not provide documentation as a precondition of taking FFCRA leave. The documentation may be provided after leave begins. 

By limiting the availability of paid sick leave, NY argued, the final FFCRA regulations likely will cause more people to become infected with coronavirus, since fewer employees will stay home when potentially infected.

On August 3, 2020, the court, therefore, vacated the related provisions of the FFCRA regulations — at least for areas governed by the Southern District of New York.

The court did throw the DOL a bone, as it acknowledged that the agency labored under considerable pressure in promulgating the final FFCRA regulations. The COVID-19 crisis required public and private entities alike to act decisively and swiftly in the face of massive uncertainty, and often with grave consequence. “But as much as this moment calls for flexibility and ingenuity, it also calls for renewed attention to the guardrails of our government. Here, DOL jumped the rail.”

State of New York v. United States Department of Labor, et al., No. 20-CV-3020.