Federal Court Strikes Down Certain
FFCRA Leave Rules

Community Action Agencies (CAAs) should be aware of a recent federal court ruling that could impact employee eligibility for emergency paid sick leave and emergency family and medical leave (FMLA) under the Families First Coronavirus Recovery Act (FFCRA).

On August 3, 2020, the U.S. District Court for the Southern District of New York struck down four parts of the U.S. Department of Labor’s (DOL’s) regulations (the Final Rule) implementing the FFCRA. The court held that the DOL exceeded its rulemaking authority in issuing these four provisions of the Final Rule. While uncertainty exists over the scope and long-term impacts of the court order, for now, this means that until the DOL appeals the ruling or decides to revisit these requirements in a new regulation, CAAs should proceed as if these provisions no longer apply when considering employee requests for emergency sick leave or emergency FMLA.

Work Availability Requirement

The court struck down the Final Rule’s “work availability” requirement, which prohibited otherwise qualified employees from receiving the FFCRA’s emergency paid sick leave and/or emergency FMLA if there was no work available to them. This included, for example, employees who had been furloughed due to the pandemic or who could not work remotely during a COVID-19 related shutdown. As a result of the court order, otherwise qualified employees (under any of the six qualifying reasons) are now eligible for leave under the FFCRA, even if their employer has no work available for them.

Intermittent Leave

The Final Rule allowed employees to take emergency sick leave and emergency FMLA under the FFCRA intermittently, with prior employer consent, if teleworking (for any qualifying reason) or, if working on-site, only if taking leave to care for a child whose school or place of care was closed due to COVID-19-related precautions. For example, an employee who is experiencing symptoms of COVID-19 and is seeking a medical diagnosis was prohibited from taking intermittent leave because of the risk of transmitting it to others in the workplace, whereas an employee who is caring for a child whose school has closed due to COVID-19 was eligible for intermittent leave so long as he or she obtained employer consent to do so. While the court held that the DOL was within its authority to condition eligibility for intermittent leave on an employee’s qualifying reason in order to protect public health, it ruled that the DOL’s requirement of employer consent was unreasonable, and struck down that condition.

Documentation Requirements

The court also struck down the Final Rule’s requirement that employees provide documentation of their need for and requested length of leave prior to taking such leave under the FFCRA. The court ruled that this documentation could not be a precondition to an employee taking leave under the FFCRA because the statute’s notice requirements are less stringent: for emergency FMLA, an employee must provide notice when the need for leave is foreseeable and as practicable; for emergency paid sick leave, an employee may be required to provide notice after the first day that he or she takes such leave, in accordance with the employer’s reasonable notice procedures. Thus, while CAAs may still require notice if the need for emergency FMLA is foreseeable, they may not refuse an employee’s request to begin leave while waiting to receive documentation.

Health Care Provider

Finally, the court deemed the DOL’s definition of “health care provider” in the Final Rule overly broad. Because employers may elect to exclude “health care providers” from the leave requirements of the FFCRA, the court noted that the overly broad definition could exclude too many from the leave provisions of the FFCRA. The court left open the question of the definition of “health care provider” moving forward, but noted in its order that the FFCRA included the FMLA’s less expansive definition of “health care provider” in its emergency paid sick leave and emergency FMLA (see 29 U.S.C. § 2611), adding that the FFCRA requires a determination that the employee be capable of providing health care services.

The court order rendered these four parts of the DOL's Final Rule invalid, but the remainder of the FFCRA and the Final Rule remain in force. As a result of the ruling, more employees could be eligible for the emergency paid sick leave and emergency FMLA offered under the FFCRA. Until the DOL takes further action, CAAs considering employee requests for these types of leave should factor these changes into their decisions related to the requests. 

This News Flash is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number  90ET0467-03-02. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

The contents of this news flash are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.