As we previously blogged, employers are obligated under the Families First Coronavirus Response Act (FFCRA) to provide employees up to two weeks (80 hours) of paid sick leave and up to 10 weeks of paid emergency family and medical leave. Back in April, the Department of Labor (DOL) issued regulations implementing and interpreting the FFCRA. However, earlier this week a New York federal court invalidated 4 key provisions of these regulations.
Availability of Work Not a Prerequisite for FFCRA Leave
Under the DOL regulations, an employee who did not have work available for them to perform was not eligible for paid FFCRA leave. However, the NY court held that the DOL could not impose such a requirement. This is important because it potentially allows employees to claim FFCRA leave even when they have been furloughed or laid off.
The DOL Defined “Health Care Provider” Too Broadly
Under the DOL’s regulations, health care providers are exempt from having to provide their employees with FFCRA leave. The regulations defined a “health care provider” extremely broadly:
“anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity “
The court rejected this definition for being overly broad. As the court noted, even an English teacher at a university with a medical school would qualify under this definition and could be denied FFCRA leave.
Employer Consent Not Needed for Intermittent Leave
The DOL regulations only allowed intermittent leave when:
1) the employer consented to the leave; and
2) the leave is limited to caring for a child whose school or childcare is unavailable.
The NY court invalidated the first requirement, holding that there is no justification for requiring employer consent for intermittent leave.
No Documentation Required Before Taking FFCRA Leave
Under the DOL regulations, employees must give their employers documentation stating why they are taking leave and the length of the leave beforehand. The court held that this is not required by the FFCRA. All that is required of employees is that they follow reasonable notice procedures after receiving paid leave.
Although this decision came out of NY, it may be a sign of things to come in D.C., Maryland, and Virginia. The decision itself did not limit the scope of its ruling, and applied to the FFCRA generally. Federal courts in other jurisdictions may follow NY’s lead, so local employers would be wise to take this decision seriously. If you are unsure of whether you are obligated to give an employee paid leave under the FFCRA, contact Thatcher Zavaro & Mani at 301-850-1246. www.ThatcherLaw.com. Email me at [email protected].
By: Aron Zavaro, Esq.
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