Court Strikes Down Portions of the COVID-19 Paid Leave Regulations

Court Strikes Down Portions of the COVID-19 Paid Leave Regulations

On August 3, 2020, the Federal Court for the Southern District of  New York struck down four segments of the Families First Coronavirus Response Act’s (FFCRA) interim final rules on paid leave.  The Court ruled that concerning these four parts of the regulations, the federal Department of Labor (DOL) exceeded the bounds of its authority granted by the FFCRA.  The four affected sections of the rule are:

  1. The Work Availability Standard—If an employee wanted to take paid sick leave for the following reasons, the regulations stated their employer had to have work available for them to do.
  • The employee is subject to a government quarantine/isolation order.
  • The employee is caring for an individual subject to a government quarantine/isolation order or healthcare provider directive for COVID-19-related reasons.
  • The employee cares for a child whose school has closed or whose childcare provider is unavailable due to COVID-19.

Similarly, to qualify for expanded FFCFRA FMLA leave to care for a child subject to a school or childcare closure, the rules said that the parent needed to be actively working.

The Court ruled that employees are eligible for FFCRA leave regardless if their employer has work for them to do at the time. Therefore, employees on “furlough” may be eligible to take paid sick-leave during their furloughed period.

  1. The Definition of Healthcare Provider—The Court found that the DOL went beyond the FFCRA when defining “healthcare provider” and struck down the very expansive definition in the rule. The definition of a healthcare provider is very significant because employers may exclude providers from FFCRA leave benefits. Until the DOL redefines the term, employers must rely on the definition of a healthcare provider in the FFCRA statute. It is “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery,” or “any other person determined by the Secretary to be capable of providing health care services.”
  1. Intermittent Leave—Currently, employees are allowed to take FFCRA leave intermittently for qualifying events that do not pose a public health risk (such as caring for a child whose school is closed). However, the interim final rule required employees to obtain employer permission first. The court ruling strikes down the permission requirement part of the rule’s intermittent leave provisions.
  1. Documentation Requirements—The interim final rules require employees to provide documentation to substantiate their need for either type of FFCRA leave. The Court found that the documentation requirement is reasonable, but employers cannot demand that employees produce as a condition of taking the leave.  Instead, employees must provide the required documentation as soon as practical, even if that is after their leave commences.

Businesses with fewer than 500 employees are subject to the FFCRA paid leave requirements.  These companies should review their existing FFCRA paid leave practices to see if any need to change as a result of the Court’s ruling.

If you need help evaluating how the Court’s decision might apply to your business, please reach out to your Kistler Tiffany Benefits/OneDigital Consultant. It is not clear if the DOL will appeal to this decision or issue new rules or FAQs for employers to address their new compliance responsibilities.  Kistler Tiffany Benefits/OneDigital is watching closely for DOL action, and we will keep our clients informed of any new developments.