Strident DOL Revises FFCRA Reg, Thumbs Its Nose at NY Federal Court Decision

Jason E. Reisman

On August 3, 2020, at the urging of the State of New York, U.S. District Judge Paul Oetken of the Southern District of New York struck down four different provisions of the U.S. Department of Labor’s (“DOL”) implementing regulation for the Families First Coronavirus Response Act (“FFCRA”): (1) the “work availability” requirement, under which paid leave is only available if an employee has work from which to take leave; (2) the requirement of employer permission to take leave intermittently; (3) the definition of “health care provider” for purposes of exclusion from paid leave benefits; and (4) the requirement for an employee to provide certain documentation before taking leave. New York v. U.S. Dep’t of Labor, 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).

Although the judge did not issue a “nationwide” injunction, the mere fact that there was a decision by a federal judge striking certain important provisions of the FFCRA regulation left employers (or maybe just their counsel) in a panic about the implications outside of New York. Would this decision impact eligible employees in California? Would the decision be retroactive? Would the DOL appeal? Would it seek a stay of the decision while the appeal was pending?

The answer to one important question has arrived in the form of the DOL’s issuance of “revisions” to its April 1, 2020, regulation implementing the FFCRA. Holding steady to its position on the “work availability” requirement and required permission to take leave intermittently, the DOL stated that these revisions “reaffirm and provide additional explanation” for why it was correct the first time. It also used this opportunity to “clarify” that employees must provide required documentation supporting the need for leave “as soon as practicable.” The only potential backtracking involved a narrowing of the extremely broad original definition of “health care provider,” which arguably allowed healthcare employers to exclude even janitors from being able to use FFCRA leave.

This update to the regulation, which the DOL said comes after it “carefully considered the district court’s opinion,” is the first shoe to drop. Now, we wait to see if the DOL will also appeal the New York court’s decision in an effort to buttress its “reaffirmed” and “clarified” position expressed in these revisions to the original FFCRA regulation. The deadline to appeal is rapidly approaching, so stay tuned. For now, at a minimum for those healthcare employers outside of New York, it’s worthwhile to review the revised definition of “health care provider.” For those in New York, unfortunately, some uncertainty continues. With only three months left before the FFCRA sunsets at year-end, let’s hope that this issue can be resolved quickly.

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