Court Strikes Down Some FFCRA Rules
Author: Michael Cardman, XpertHR Legal Editor
UPDATE - August 4, 2020: 7:10 PM: In response to a request from XpertHR on whether an appeal would be filed or for any additional statement, a spokesperson for the Department of Justice (DOJ) declined to comment.
August 4, 2020
A federal district court has struck down four provisions of the Families First Coronavirus Response Act (FFCRA) regulations:
- The work-availability requirement;
- The definition of health care provider;
- The restrictions on intermittent leave; and
- The employee documentation requirements.
The US Department of Labor (DOL) exceeded its authority to interpret the FFCRA when it issued these rules, a federal court in the Southern District of New York held in an August 3 order.
The DOL may appeal the order. A DOL spokesperson said the agency defers to the Department of Justice (DOJ) at this time. A request for comment submitted to the DOJ had not been returned as of the time of publication.
Under the FFCRA rules, paid leave is not available under either the Emergency Paid Sick Leave Act (EPSLA) or the Emergency Family and Medical Leave Expansion Act (EFMLEA) if the employer "does not have work for the employee."
This requirement is "hugely consequential for the employees and employers covered by the FFCRA, because the COVID-19 crisis has occasioned the temporary shutdown and slowdown of countless businesses nationwide, causing in turn a decrease in work immediately available for employees who otherwise remain formally employed," said District Judge J. Paul Oetken in the opinion.
Judge Oetken concluded that the work-availability requirement is "manifestly contrary to the statute's language."
Definition of "Health Care Provider"
The court also struck down the definition of the term health care provider under the FFCRA regulations.
Employers may exclude health care providers from leave benefits, so the definition "has grave consequences for employees," Judge Oetken said.
Noting that the DOL had conceded in court filings that English professors, librarians and cafeteria managers at universities with a medical school would all qualify as health care providers under the regulations, he found that the definition was "overly broad" and could not stand.
Restrictions on Intermittent Leave
Under the DOL's regulations, paid sick leave may be taken on an intermittent basis (i.e., in separate periods of time rather than one continuous period) only if the employer and employee agree, subject to certain conditions and limits. The employer and employee may put their agreement in writing, but a clear and mutual understanding between the parties is sufficient.
Judge Oetken struck down this regulation to the extent that it requires employer consent, finding this restriction was "entirely unreasoned." However, the court let the regulation stand as far as it bans intermittent leave based on qualifying conditions that implicate an employee's risk of viral transmission.
Employee Documentation Requirements
Lastly, Judge Oetken nullified the employee documentation requirements, under which employees must provide their employers with certain documentation before taking leave under the EPSLA or EFMLEA.
To the extent that this documentation requirement imposes a different and more stringent condition to leave, it is inconsistent with the statute's unambiguous notice provisions," the court held.