A New York federal district court ruled that portions of the U.S. Department of Labor’s (“DOL”) rules implementing the Families First Coronavirus Response Act (“FFCRA”) went beyond the DOL’s authority. The court vacated the “work-availability requirement,” the expansion of the definition of “health care provider,” intermittent leave requiring the employer’s consent, and certain documentation requirements outlined in the DOL’s rule.

In March 2020, Congress enacted the FFCRA in an effort to combat the economic fallout of the COVID-19 pandemic. FFCRA requires qualifying employers to offer up to two weeks of paid sick leave and up to 10 additional weeks of paid childcare leave to employees who are unable to work because of certain reasons related to the pandemic. The DOL issued regulations implementing the FFCRA statute, but the State of New York filed a lawsuit in federal court challenging four specific parts of the DOL rules. The federal court largely agreed with the State’s objections.

First, under the so-called “work-availability requirement,” the DOL rule excluded employees from receiving FFCRA benefits if their employers did not have work for them. Because the court determined that the “work-availability requirement” was not created by statute and the DOL did not otherwise have proper grounds for creating it, the court overturned that requirement.

Second, the court narrowed the DOL’s expansive definition of “health care providers.” Notably, “health care providers” are exempt from receiving FFCRA benefits.

Third, the court split its decision on the rule requiring employer consent before an employee can use FFCRA leave intermittently. While the court upheld part of the DOL’s intermittent-leave rule, it invalidated the rule that required employer consent before FFCRA leave could be taken intermittently. As a result, although this is not an Illinois case, Illinois schools should consult with legal counsel before denying intermittent FFCRA leave requests. Relatedly, the DOL subsequently updated its guidance to address employees whose children are on a hybrid school schedule. Now, under that guidance, employees who require childcare leave under the FFCRA are entitled to take that leave on the days their children are home on remote-learning days, even if they are not consecutive days, regardless of the employer’s consent (unless the employee had a choice for full in-person instruction).

Finally, the court invalidated the DOL’s requirement that employees provide documentation before taking FFCRA leave. While the rule required employees to submit documentation indicating the reason for the leave, the duration of the requested leave, and, when relevant, the authority for the isolation or quarantine order qualifying them for the leave prior to taking FFCRA leave, the court ruled that employees cannot be required to submit the necessary documentation prior to their leave, particularly when their need for leave is unforeseeable. Thus, although schools can expect employees to provide prior notice of foreseeable leave, schools should consult legal counsel before denying leave on the basis of late notice.

Contact an attorney in our Labor/Personnel practice group with your FFCRA leave questions.


Source: New York v. U.S. Dept. of Labor, Case No. 20-cv-3020 (S.D.N.Y. Aug. 3, 2020)