Employers – Be Aware of Potential FFCRA Changes

August 06, 2020

On Monday, August 3, a New York federal district court judge struck down certain Department of Labor Rules regarding enforcement of the Families First Coronavirus Response Act (FFCRA). The judge found that the Department of Labor (DOL) exceeded their authority in interpreting the language of the FFCRA.

The decision could have significant ramifications, but it is unclear what will happen next. The DOL may appeal this decision and will likely request that the rules remain in effect pending final resolution by the courts. However, as of now, the challenged portions of the rule are invalid everywhere, not just in New York. 

The decision struck down the following aspects of the DOL rule:

  1. Work-Availability Rule: The requirement that an employee is only eligible for leave if their employer has work available for them.
  2. Definition of Health Care Provider: The expansive definition of health care provider for the purposes of the health care exemption.
  3. Intermittent Leave. The provision that the FFCRA’s expanded FMLA leave may only be taken intermittently if the employer agrees. 
  4. Documentation. The requirement that employees provide certain documentation prior to taking leave.

We will continue to monitor and update the impact of the District Court’s decision as it becomes more clear. In the meantime, we recommend that employers consult with their employment attorney before applying the work-availability rule or denying an employee’s request for intermittent leave. Employers may also want to review requests for leave that were previously denied based on a provision that has been struck down.

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