AUGUST 10, 2020  |  4 MIN READ

FFCRA Paid Leave Update


New ruling could substantially expand the Families First Coronavirus Response Act (FFCRA) leave entitlement for many employees.

On August 3, 2020, a federal judge for the Southern District of New York vacated significant provisions of the Department of Labor’s (DOL) Final Rule implementing the Families First Coronavirus Response Act (FFCRA). The ruling has broad implications for employers covered by the FFCRA and could substantially expand FFCRA leave entitlement for many employees.


The FFCRA became law on March 18, 2020, and requires covered employers to provide paid leave under the statute’s Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) to employees who are unable to work or telework for various reasons related to COVID-19. IMA’s Alert covering the FFCRA can be found here.


The DOL—the agency responsible for administering the FFCRA’s paid leave provisions—issued a Final Rule on April 6, 2020, providing guidance to employers on how the FFCRA’s paid leave provisions would be implemented and interpreted. Shortly after the Final Rule was issued, the State of New York filed a lawsuit against the DOL claiming that certain aspects of the regulations exceeded the DOL’s authority and improperly restricted employees’ access to emergency paid leave. The Court’s decision last week largely agreed with New York’s position and struck down four key provisions of the Final Rule: (1) the “work availability” requirement; (2) the definition of “health care providers” that may be excluded from taking leave; (3) the employer consent requirement for intermittent leave; and (4) the requirement for supporting documentation prior to taking FFCRA leave.


The ruling raises significant questions for employers attempting to navigate the FFCRA’s leave provisions, and there will likely be further litigation and regulatory developments on these issues in the near future. For the time being, however, employers subject to the FFCRA will need to carefully review their leave policies in light of the now-vacated rules.


Each of the provisions at issue in the decision is discussed below.
Work Availability Requirement
The FFCRA provides leave to employees who are “unable to work (or telework) due to a need for leave” because of certain covered reasons related to the COVID-19 pandemic. The DOL’s Final Rule interpreted this provision to prohibit leave for employees whose employers do not have work available for them. However, the Final Rule only explicitly applied this so-called “work availability” requirement to three of the six qualifying reasons for leave. It states that employees otherwise meeting the criteria for reason #1 (subject to a quarantine or isolation order), #4 (caring for an individual subject to a quarantine or isolation order), or #5 (caring for a child whose school or childcare provider has closed) may not take paid leave if their employers do not have work available for them.


The Court’s ruling struck down the work availability requirement entirely. The judge determined that the DOL’s differential treatment of the six qualifying reasons was “unreasoned” and contrary to the plain language of the FFCRA. This ruling opens the door for leave requests from employees who are furloughed or temporarily laid off due to government orders or economic circumstances.
Health Care Provider Definition
The FFCRA gives employers the option to deny leave requests from health care providers and emergency responders. The provision was intended to strike a balance between employees’ need for paid leave and the public interest in maintaining the country’s healthcare system during the pandemic. To that end, the Final Rule adopted an expansive definition of the term “health care provider,” which included “anyone employed at any doctor’s office, hospital, health care center, clinic, . . . nursing facility, retirement facility, nursing home, home health care provider, . . . or any similar institution.” The definition also encompassed all employees of entities that contract with health care institutions or produce medical products.


The Court took issue with the DOL’s focus on the nature of the employer, rather than the specific duties performed by the employee. It noted that the definition could be applied to a range of employees that provide no healthcare services whatsoever, such as an English professor at a university that happens to have a medical school. This interpretation, according to the Court, was “vastly overbroad.” Now that the DOL’s definition has been vacated, the only remaining definition on which employers may rely can be found in the traditional FMLA regulations and is limited to “a doctor of medicine or osteopathy” authorized to practice in their state. Based on this ruling, a wide swath of employees that employers had previously excluded from FFCRA leave may now seek leave prospectively or retroactively. Employers should exercise caution and seek competent employment counsel in applying the exemption going forward.
Intermittent Leave
The Court also struck down the portion of the Final Rule requiring employer consent for intermittent FFCRA leave (i.e. leave taken in separate periods of time, rather than a single continuous period). While the FFCRA does not address intermittent leave at all, the DOL’s rule prohibits the use of intermittent leave for most of the qualifying conditions while the employee is reporting to the employer’s worksite. However, it allows employees to use intermittent leave while teleworking and/or to care for a child whose school or place of care is closed, but only if the employer agrees.


Once again, the Court found that the DOL’s blanket requirement of employer consent was not sufficiently justified. Employees may now be able to use EPSL/EFML intermittently while teleworking or for childcare purposes even where the employer previously did not allow them to do so. Employers should review their current policies on intermittent leave to ensure compliance with this ruling.
Documentation Requirements
The DOL regulations set forth a confusing scheme of documentation and notice requirements for employees seeking EPSL and EFML. In one such provision, the Final Rule requires that employees submit supporting documentation to their employer prior to taking leave, including the reason for leave, the expected duration of the leave, and in some cases, the identity of the governmental agency or health care provider requiring the employee to self-quarantine. The Court determined that this prior notice requirement conflicts with the language of the FFCRA and may not be used as a precondition to leave.
Next Steps for Employers
The full impact of this decision is not yet clear. The Court’s opinion did not specifically indicate whether its ruling should be applied nationwide or only in the state of New York. However, even if the decision is limited in scope, other states or affected employees could rely on the ruling to bring similar challenges.


The DOL is likely to appeal the Court’s ruling, and the appeals court may decide to reinstate the vacated portions of the Final Rule while the appeal is pending. The DOL may also choose to revise its Final Rule to be consistent with the ruling. In the meantime, employers should exercise extreme caution and seek legal counsel before continuing to rely on any of the invalidated provisions. IMA will be closely monitoring all regulatory and judicial developments in this area and will continue to provide practical updates as soon as possible.

This material is for general information only and should not be considered as a substitute for legal, medical, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.