Portions of DOL’s Final Rule on the FFCRA Struck Down by U.S. District Court

August 14, 2020 by

The Families First Coronavirus Response Act (“FFCRA”), which applies to private-sector employers with less than 500 employees, grants paid leave to full-time employees who are unable to work (or telework) due to a need for leave because of any of six COVID-19-related criteria, subject to some limitations.

The Department of Labor (“DOL”) initially issued temporary, nonbinding rules to help clarify how the FFCRA worked. The DOL issued its Final Rule governing the FFCRA on April 6, 2020, which advised, among other things, that (1) Employees who had no work or were furloughed were not entitled to FFCRA paid leave, (2) that prior to taking leave, employees had to provide certain documentation, and (3) that employees could only take intermittent leave with the employer’s consent. The DOL then issued corrections to the Final Rule on April 10, 2020.

Last week the U.S. District Court for the Southern District of New York struck down the DOL Final Rule in a few important ways:

  1. Work-Availability Requirement: The DOL Final Rule provided that if the employer had no work for the employee, the employee would not be entitled to paid FFCRA leave. The district court disagreed. Even if the employer has no work, including furloughed employees, employees meeting the COVID-19 criteria may take paid leave according to the district court.
  2. Documentation Requirement: The DOL Final Rule required employees to submit documentation to their employer prior to taking FFCRA leave, showing:
    • The reason for leave.
    • The duration of the requested leave.
    • When relevant, the authority for the isolation or quarantine order qualifying them for leave.

    The district court struck down these requirements as a precondition to employee leave. The district court ruled that the FFCRA only requires “practicable” and “reasonable” notice.

  3. Intermittent Leave: The DOL Final Rule allowed employees to take paid sick leave or expanded family and medical leave intermittently (rather than one continuous period) only if the employer and employee agreed (and, even then, only for a few of the qualifying conditions). The district court again disagreed and held that the requirement of employer consent for the employee to take intermittent leave is inconsistent with the FFCRA.

Impact on Employers

A Second Circuit appeal is probable, along with potentially conflicting rulings in different district courts across the United States. For now, employers within the jurisdiction of the Southern District of New York must comply with the district court’s ruling. Employers in other jurisdictions, including Texas, should cautiously apply the FFCRA with the New York district court ruling in mind. The safest measure for employers to follow is to modify their FFCRA approach to meet these three key changes resulting from last week’s ruling, while keeping an eye out for new rulings or an appeal.

Of course, employers should also stay abreast of the evolution of COVID-19 related laws and legal updates as they impact the workplace. Brown Fox provides a regularly updated COVID-19 Resource Center and is prepared to assist as issues arise.

Margaret Mead

Margaret Mead is a board-certified labor and employment attorney, with over two decades of experience. As a fierce litigator, she has represented clients in Texas State and federal courts and before state and federal agencies (EEOC, TWC, Department of Labor). Originally from Kansas and a KU Alumni, Ms. Mead is a Jayhawks basketball enthusiast. She enjoys attending local musical and dance performances. She also enjoys travel and scuba-diving.

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