NY Judge Changes FFCRA Rules– Now we Wait for Direction from DOL

In an opinion issued on August 3, 2020, a federal judge in the Southern District of New York ruled in favor of the State of New York on its challenge to the Department of Labor’s (“DOL”) interpretation of certain provisions of the Families First Coronavirus Response Act (“FFCRA”).

The court vacated the following portions of the DOL’s regulations on the FFCRA: “the work-availability requirement, the definition of “health care provider,” the requirement that an employee secure employer consent for intermittent leave, and the temporal aspect of the documentation requirement, that is, the requirement that the documentation be provided before taking leave.”

As a result, and only in parts of the State of New York for now —

1. Furloughed employees with a qualifying reason may utilize FFCRA leave;
2. The definition of “health care providers” exempted from FFCRA leave benefits is significantly narrowed to focus more on actual medical practitioners;
3. Employees do not need employer approval to use FFCRA leave on an intermittent basis while working remotely; and
4. Verbal notice of need of leave is sufficient—employees are not required to present a doctor’s note before taking leave (although employees must still submit documentation).

Although this decision presently only impacts certain New York employers, the nation will be watching DOL’s response closely, especially to see whether it elects to amend the FFCRA rules or appeal the decision. It remains to be seen if other states will file similar challenges. Employers would be wise to closely monitor the responses to this ruling on a state and national level, and Shulman Rogers will publish future alerts on this topic as appropriate. Background information regarding the FFCRA can be found in this previous alert.

Contact info: Meredith S. Campbell Chair, Employment and Labor Group
Shulman Rogers [email protected] | T 301.255.0550 | F 301.230.2891