Key FFCRA Regulations Vacated by Federal Court, Dramatically Expand FFCRA Leave Eligibility

On Monday, August 3, 2020, a federal court for the Southern District of New York struck down Department of Labor (DOL) regulations regarding the Families First Coronavirus Response Act (FFCRA). Even though this case was decided in federal court in New York, it will likely have national impact.

As a reminder, the FFCRA requires employers with fewer than 500 employees to provide two types of paid leave to qualifying employees: up to 80 hours of Paid Sick Leave and 12 weeks of Emergency Family Medical Leave (10 of which may be paid leave). Employers are reimbursed for paid leave through an employer tax credit. The regulations struck down in State of New York v. United States Department of Labor provided key rules for FFCRA leave.

By vacating these rules, the court expanded eligibility for FFCRA leave, removed barriers to intermittent use of FFCRA leave, and eliminated prior documentation requirements. The Department of Labor is expected to appeal the federal court's decision. Maslon's Labor and Employment Group will continue to monitor this developing situation and will provide additional updates regarding the impact of this decision.

In the meantime, employers should be aware of the decision's impact on paid leave under the FFCRA:

1. More Employees May Be Eligible for FFCRA Leave.
   
   There is no longer a work-availability requirement.
    
   • The DOL regulations stated that qualifying employees are only eligible for FFCRA leave if an employer had work available for the employee—meaning that employees placed on a temporary furlough did not qualify for paid leave. The federal court held this restriction was not a proper interpretation of the statute, expanding eligibility for FFCRA leave.
      
   • Takeaway: Employers must now consider requests for FFCRA leave even if there is no work available for the employee. This includes employees who are temporarily furloughed, employees with reduced hours, and employees out of work due to a business shut down based on a government order. These employees still must meet other eligibility criteria for FFCRA leave.
      
   The "Healthcare Provider" exemption is limited.
    
   • Under the FFCRA, employers do not need to provide FFCRA leave to "health care providers." The federal court disagreed with the DOL's expansive definition of health care providers, which included all employees of an organization providing health care services and supply chain businesses and contractors.
      
   • Takeaway: An employer may properly deny FFCRA leave to health care providers such as doctors of medicine or osteopathy, but may not be able to deny leave to other key employees such as registered nurses, certified nursing assistants, and medical technicians.

2. Employees Do Not Need Employer Approval to take Qualifying FFCRA Leave Intermittently.
    
   • The federal court agreed with the Department of Labor that FFCRA leave may not be taken intermittently where it would increase COVID-19 exposure risk (such as when an employee takes leave due to COVID-19 diagnosis, exposure, or symptoms, and cannot work remotely). However, the federal court vacated the DOL's rule that leave can only be taken intermittently with employer permission.
      
   • Takeaway: Employers can no longer deny intermittent use of FFCRA leave where it does not increase risk of exposure to COVID-19 in the workplace. This means employees may elect to take FFCRA leave due to school or childcare closure intermittently. Teleworking employees may opt to take FFCRA leave intermittently for any qualifying reason, even those related to illness. Employers should remove any approval requirements for intermittent leave in these instances.
      
3. Employees Do Not Need to Provide Documentation Prior to Taking FFCRA Leave.
    
   • The federal court struck down DOL documentation rules to the extent they required documentation of the need for leave before an employee may take leave.
      
   • Takeaway: Employers can no longer require employee documentation before employees take leave. Employers can still require documentation to substantiate leave requests but documentation cannot be required in advance unless the need for leave is foreseeable, such as taking leave for childcare or school closure. Employers should update FFCRA policies and practices to reflect this change.

We Can Help

Maslon's Labor and Employment Group is available to help your business navigate FFCRA leave requests, policies, and procedures.