Families First Coronavirus Response Act – What Employers Need to Know

By Liz Hartsel

On August 3, 2020, a federal court in New York ruled that the Department of Labor (DOL) had exceeded its authority in creating a rule limiting eligibility for paid coronavirus leave under the Families First Coronavirus Response Act (FFCRA). The FFCRA requires employers with fewer than 500 employees to provide workers with short-term paid sick time for specified reasons related to COVID-19. The DOL’s rule was meant to offer guidance on how to interpret the FFCRA.

In doing so, the court vacated four provisions:

  1. The Court ruled that the DOL had exceeded its authority by blocking workers from taking leave under the FFCRA if their employees do not have work to perform. For example, if an hourly employee’s hours have been reduced due to COVID-19, the employee may still be entitled to relief even if the employee is not scheduled to work.

  2.  The Court vacated the DOL’s definition of “health care provider”, determining it was too broad in that it included not only doctors and nurses, but virtually anyone who works for or contracts with healthcare-related entities, thus allowing employers to deny leave to employees who are not directly engaged in providing health care services.

  3. The Court also partially vacated a provision permitting “intermittent” leave only upon agreement with the employer and employee. The Court noted that, while it is proper to constrain the exercise of  intermittent leave to circumstances where there is minimal risk that the employee will spread COVID-19, it is unreasonable to require an employer’s consent for intermittent leave.

  4. The Court vacated the requirement that employees submit extensive documentation to support an FFCRA leave request prior to taking FFCRA. The FFCRA, however, only requires employees to provide notice prior to taking leave.

The Court’s ruling expands the number of workers who are eligible for FFCRA leave.  The ruling, however, is limited to the Southern District of New York. As such, employers operating outside New York City, or in other states, will have different requirements based on their location. In addition, employers outside of New York should be on notice that the DOL’s rule may not be valid if the Court’s decision is adopted outside of New York.

Employers with questions on how to navigate the FFCRA should contact an employment law specialist at Fortis Law Partners who is available to analyze the issue.

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