Update | New York Federal Court Invalidates Four Provisions of the Families First Coronavirus Response Act

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Published: 09.09.2020

When: The State of New York v. U.S. Department of Labor, et al. was decided on August 3, 2020. The date to comply is forthcoming.

Where: The United States District Court for the Southern District of New York; encompasses the counties of New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan.

What: The United States District Court for the Southern District of New York sided with the State of New York asserting that the U.S. Department of Labor (DOL) exceeded its authority and unduly restricted paid leave for employees under the implementation of the Families First Coronavirus Response Act (FFCRA).
 
The decision invalidated the following FFCRA Final Rule provisions:

1. Work-Availability Requirement: The prerequisite for taking FFCRA leave is that the employer has work available for the employee to perform. If the employee is not scheduled to work whether it’s due to a furlough, business closure or otherwise, there is no work schedule from which to take leave.
   
   The court determined that the DOL could not require that employees actually be working in order to take FFCRA leave. This begs the question, do furloughed employees now have rights to FFCRA leave?


2. Documentation: The final rule required employees provide their employers with supporting documentation prior to taking FFCRA leave. The court struck down the advanced documentation requirement; employers should not require the submission of documentation as a precondition to taking FFCRA leave.
   
   Revised DOL guidance as to the timing of such documentation is anticipated. 


3. Health Care Provider: The FFRCA statutory language permits employers to exclude health care providers from taking FFCRA leave. Here, the DOL adopted a broad definition of health care providers that includes anyone employed by a hospital, doctor’s office, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, any facility that performs laboratory or anyone employed by an entity that contracts with a Medical Institution to provide services or maintain facility operations.
   
   While the case does not define who constitutes a “health care provider” the decision makes it clear who is not, i.e., non-medical personnel are not exempted from the FFCRA.


4. Intermittent Leave: The Final Rule regarding intermittent leave provides that workers can take less than their full leave allotment only when they don't pose an infection risk, and only when the worker and their employer agree to intermittent leave. This would result in a worker who has COVID-19 symptoms and is seeking a diagnosis (essentially posing an infection risk) to be unable to take intermittent leave, while a worker who has to care for their child (and who does not pose an infection risk) could, with permission.
   
   In those situations where intermittent FFCRA leave is generally permitted under the regulations, employers must permit employees to take such leave intermittently. The court ruled there was no rationale for requiring employer permission for intermittent leave for qualifying conditions that do not pose an infection risk.
   
   Further guidance is expected to address unanswered questions and open issues such as the following:  
   • Does this decision apply to just New York employers or does this ruling affect employers nationwide?
   • As a result of this ruling, must employers provide retroactive leave dating back to the date of the final rule of April 1, 2020?
   • Employers will need to be nimble in their approach to changes as the DOL may appeal the ruling to the Court of Appeals for the Second Circuit; it is unclear whether the Circuit Court will stay its application pending a determination on appeal.
   • Will the DOL revise and issue new FAQs to align with the decision? Specifically, FAQs 23-28 that deal with the employee’s inability to take FFCRA leave when there is a business closure or reduction in hours is seemingly outdated.
   • What notices, if any, should employers disseminate to eligible individuals of the changes to the FFCRA?

State of New York v. U.S. Department of Labor, et al., August 3, 2020
https://www.fmlainsights.com/wp-content/uploads/sites/813/2020/08/State-of-NY-v.-USDOL.pdf

UPDATE 9.9.2020
The DOL sent a final rule to the White House for review on September 3, 2020. Although the details have not been made available to the public, the changes follow a ruling by the U.S. District Court for the Southern District of New York striking down certain aspects of the department's current rules, including a requirement for employees to provide documentation before taking FFCRA leave.

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