Court Ruling Invalidates DOL Guidance on FFCRA

Several key provisions of the U.S. Department of Labor’s final rule on guidance on interpretations of the Families First Coronavirus Response Act were invalidated in a case before the United States District Court Southern District of New York. 

The FFCRA is one of the measures taken by Congress in response to the coronavirus epidemic. It generally requires employers to offer paid and unpaid sick leave and emergency family leave to employees who are unable to work or telework due to a need for leave due to certain pandemic-related reasons.

Employers receive a dollar-for-dollar payroll tax credit for benefits paid under the FFCRA. 

In an August 3, 2020 decision a federal district court judge struck down DOL’s rules regarding the “work availability” requirement,” the requirement of employer consent for intermittent leave, the documentation requirement prior to taking FFCRA leave, and the definition of healthcare provider. 

While at this point it is unclear whether the decision applies only to New York employers, or whether the decision is nationwide in scope, legal commentators have noted that these decisions often result in a nationwide scope.

Covered employers (those with 500 or less employees) may consider approaching issues involving whether or not to provide paid FFCRA leave under these rules cautiously. 

Work Availability Not a Requirement

DOL regulations required that a covered employer have work available for the employee in order for the employee to be eligible for paid leave under the FFCRA.

Employees who would otherwise qualify for FFCRA paid leave, would not be eligible, or would have their paid leave interrupted if they were furloughed or temporarily laid off or where their employers had to temporarily cease operations because of state or local orders due to the pandemic or other economic circumstances. 

The court’s decision effectively will allow employees unable to work due to one of the six FFCRA reasons to remain eligible for paid leave even though their employer has no work for them.

This will likely have a significant impact on Connecticut employers.

Employer Consent Not Required for Intermittent Leave for Child Care

DOL’s rule required the agreement of the employer if the employee was going to take leave intermittently under certain qualifying circumstances.

The court invalidated the need for employer consent in circumstances where the employee needs to care for a child whose school or place of care is closed or where child care is unavailable due to COVID-19 related reasons. 

This will likely become an issue as Connecticut school districts reopen schools under a variety of models that vary from district to district ranging from in-person models to hybrid and remote learning models that may likely present some child care challenges to employees. 

Employees Not Required to Submit Documentation Prior to Taking Leave

DOL’s rule required employees to submit documentation to employers prior to taking FFCRA leave.

The documentation had to indicate the reason for leave, the length of the leave and other relevant information.

The court’s decision left in place the DOL rule requiring that employees provide their employer with notice of their need for leave as is practicable under the circumstances, and follow reasonable notice procedures once a period of paid leave begins.

However, the court struck down the blanket requirement that an employee provide documentation before taking leave as a precondition to doing so.

Healthcare Providers More Narrowly Defined

Under DOL regulations, an employer who is a healthcare provider could have denied FFCRA coverage to a broad range of employees including employees whose roles “bear no nexus whatsoever to the provision of healthcare services.”

The definition applied to anyone employed at a doctor’s office, healthcare center, clinic, medical school, local health department, nursing home, pharmacy, or other defined facilities.

The definition could have applied to a librarian at a medical school, for example.

The court ruling narrows that definition, allowing employers to deny FFCRA paid leave only to specifically identified healthcare professionals. 

It remains to be seen to what extent this decision will apply to FFCRA situations beyond New York.

It remains to be seen to what extent this decision will apply to FFCRA situations beyond New York, whether and how it might affect all the FFCRA covered situations prior to now that may have been administered contrary to the court’s decision, whether there will be an appeal to the decision, and whether DOL will issue new clarification or guidance based on the decision. 

Since the beginning of the COVID crisis employers and employees have coped with chaos, uncertainty, and shifting legal mandates. 

Unfortunately, this is yet one more chaotic, uncertain legal turn for which there is no clear path to follow, at least for now. 

The best we can advise is call us at CBIA, watch for updates we and others will issue as we learn more, seek your own counsel, and tilt in favor of a good faith effort that seems most suited to fulfill the intent of the law. 

The “classic” FMLA has always contained references indicating that minimal compliance is expected, but going above what is required will always be acceptable.

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 For more information, contact CBIA’s Brian Corvo (860.244.1169).