07 August 2020

Changes to the FFCRA Regulations?

Earlier this week, a federal court in New York voided four key aspects of the Department of Labor (DOL)’s regulations implementing the paid leave provisions of the Families First Coronavirus Response Act (FFCRA).


As you may remember, the DOL issued final FFCRA regulations on April 1, 2020- the same day that the FFCRA’s paid leave provisions took effect. Under the FFCRA, most public-sector employers and private sector employers with fewer than 500 employees are required to provide up to two weeks of Emergency Paid Sick Leave (EPSLA) to employees unable to work for one of six COVID-19 virus related reasons. Further, those employers must also offer up to 10 weeks of partially paid leave under expanded Family and Medical Leave Act coverage to care for a child whose school or place of care is closed because of the pandemic. The FFCRA is set to expire on December 31, 2020.

The Court’s Decision:

Shortly after the DOL issued its final regulations, the State of New York sued the DOL, claiming that the agency unlawfully denied leave to otherwise eligible employees and exceeded its statutory authority in drafting its regulations. Earlier this week, the Court agreed.  It invalidated four key FFCRA regulations.

  • Work-availability requirement: Requirement that FFCRA leave is available only where the employee had work available to be performed.
    • Court’s decision and what it means: The Court determined that the DOL could not require that employees actually be working, or the employer have work for them to do, in order to take FFCRA leave. This opens the door for claims of leave by employees who qualify for one of the six reasons included in the FFCRA but who are furloughed or temporarily laid off or whose employers have had to temporarily cease operations under state or local orders or due to economic circumstances during the pandemic.
  • The health care provider exemption: The DOL allowed an employer to exclude from FFCRA leave any “health care providers,” and defined this term broadly.
    • Court’s decision and what it means: The Court determined that the DOL’s definition of “health care provider” was “vastly overbroad” by including any employee of certain types of employers, and vacated the definition. However, the Court did not replace the definition, or give instructions on what the parameters an employer could or should use when determining the appropriate scope of the heath care provider exemption.
  • Intermittent leave: In an effort to limit the risk that an employee might spread COVID-19 to other employees, the DOL limited the use of intermittent leave to certain situations, and included a requirement that an employer’s consent is needed before an employee can take intermittent leave.
    • Court’s decision and what it means: The Court invalidated the portion of the DOL rule that required employer consent for intermittent leave due to school or childcare closure.
  • Documentation supporting the need for leave: The final rule required that employees submit documentation to their employer prior to taking FFCRA leave.
    • Court’s decision and what it means: The Court struck down the requirement that documentation be provided prior to an employee taking FFCRA leave, but left intact the overall documentation requirement to support the need for leave.

Impact on employers:

There are still a number of unknowns related to the impact of this decision, including whether the decision is applicable to employers outside of New York, whether the DOL will appeal, whether the DOL will issue new regulations, and whether employers need to provide leave consistent with the vacated rules retroactively (i.e., dating back to April 1st). These issues are complex and may even involve considerations other than FFCRA, such as:

  1. Whether providing retroactive FFCRA leave to a period where an employee received unemployment compensation would require the employee to pay back some of that compensation,
  2. 2. Whether the employer is participating in the Payroll Protection Program and wants to provide retroactive FFCRA leave and how the employer should determine whether to apply these wages to its forgiveness amount or claim the FFCRA payroll credit, and
  3. Whether providing retroactive FFCRA leave may negatively impact the employee’s ability to have time available for a future qualifying need for leave (such as to care for a child whose school is closed to in-person instruction this fall).

Employers who are making FFCRA paid leave decisions that implicate any of the four aspects invalidated by New York’s challenge should contact their Miller Johnson attorney to discuss the approach that makes sense.