On April 1, 2020, the Department of Labor (DOL) issued its Final Rule regarding the implementation of the Families First Coronavirus Response Act (FFCRA). After the implementation, the state of New York pursued legal action against the DOL, claiming four key features of the DOL’s Final Rule exceeded the agency’s authority and restricted paid leave for employees. On August 5, 2020, the U.S. District Court agreed and struck down the following rules:
- Require employees to provide documentation before taking FFCRA leave. The court’s decision appears to allow employers to request documentation only when the leave is “foreseeable” and does not appear to preclude an employer from obtaining documentation after leave is approved.
- Require an employee to secure employer consent for intermittent leave. The employer’s permission is not required for intermittent leave but that type of leave is not available to employees who are infected.
- Exclude employees from FFCRA benefits if their employers do not have work available for them. FFCRA leave is available to employees who need to take leave even if the employer does not have work available. Furloughed employees are now eligible for FFCRA.
- Broadly defines the term "health care provider." The court did not define what a “health care provider” was, but it did make clear that non-medical employees are not exempt from FFCRA.
There is a good possibility that this court ruling will be appealed. Employers should follow these new directives and advise their employees of the changes.