Court rules DOL overstepped, strikes portions of FFCRA regulations


On Monday, August 3, 2020, a New York federal judge struck down four components of the U.S. Department of Labor’s (DOL) regulations that implemented the emergency paid leave provisions of the Families First Coronavirus Response Act.  The FFCRA grants paid leave to employees who are unable to work (or telework) due to a need for leave because of any of six COVID-19-related criteria.  The FFCRA applies to private employers with less than 500 employers.  Following the passage of the FFCRA, the DOL issued implementing regulations. The State of New York sued the DOL, alleging that the DOL exceeded its authority in implementing various parts of the FFCRA regulations. The Court agreed with the State of New York and ruled that the agency exceeded its authority under federal law in issuing certain provisions of the regulations.

Here’s a look at the provisions that were struck down:

“Work availability” requirement

When the DOL implemented the paid sick leave provision, it excluded from those benefits employees whose employers “do[] not have work” for them. The Court struck down this work availability requirement.  What this means is that if an employee remains employed but is not working (such as when an employee is furloughed) and a need for leave under one of the six COVID-19 related criteria arises, the employee would qualify for FFCRA leave.

Definition of “health care provider”

The FFCRA allows employers to exclude “health care providers” from certain provisions of the FFCRA.  The Court ruled that the definition of “health care provider” was too broad and exceeded the DOL’s authority.  The Court criticized the expansive definition and stated that the definition of health care provider should be applied by looking at the employee’s role within the organization and not the employer’s type of entity.  This creates significant implications for employers who relied on the previous definition of health care provider.  Such employers should work with counsel to navigate the great uncertainties following this opinion.

Employer restrictions on taking intermittent leave

The Court also found that the regulation’s prohibition on intermittent leave exceeds DOL’s authority under the statute. The Court found that employers could impose limitations on an employee’s ability to intermittently take leave when the employee was under a self-isolation order, was taking care of someone diagnosed with COVID-19, or when the employee was seeking treatment for COVID-19. The rationale for allowing these limitations was because of the increased risk of infection. Nevertheless, the Court held that there was no basis to allow employers to put restrictions on the intermittent use of leave for childcare. Accordingly, employers must allow employees to take FFCRA leave on an intermittent basis for any reason that does not have an increased infection risk.  This includes allowing employees to take intermittent leave for the care of a child whose school or daycare is closed. Thus, as schools start opening again, employers may be required the provide leave under the FFCRA on an intermittent basis.

Documentation requirements

Finally, the Court struck down the regulation’s documentation requirements, holding employers cannot require documentation in advance of the employee needing to take leave unless the need for leave is foreseeable.  Employers may require documentation after the first workday an employee receives paid sick time and may request the employee follow reasonable notice procedures in order to continue receiving paid sick time. Employers cannot, however, deny leave pending an employee providing proper documentation.

Ruling creates uncertainty for employers

It is expected that this court ruling will be appealed. The Court’s decision was not a nationwide injunction. Other states or individuals seeking leave may file similar lawsuits. The DOL may announce revisions to its regulations, the FAQs it has provided, or its intent to appeal the decision. Simply put, the decision creates great uncertainty for employers. Employers should consult with their McAfee & Taft counsel when leave requests are sought before relying on the regulations, and they may need to update any FFCRA policies.  Employers need to be concerned when relying on the DOL’s interpretation of work availability, the definition of a “health care provider,” requests for intermittent leave, and employee documentation required prior to leave.  McAfee & Taft continues to monitor developments as they arise.

State of New York v. U.S. Department of Labor, et al., No. 20-CV-3020 (S.D.N.Y. Aug. 3, 2020)