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FFCRA Changes

August 5th, 2020 | By Jules Halpern Associates | COVID-19, Employer Policies, Employment Law, USDOL

In a case brought by New York Attorney General Letitia James against the federal Department of Labor (DOL), the State of New York argued that four provisions of the Families First Coronavirus Response Act (FFCRA) excessively restrict leave. On Monday, Judge Paul Oetken sitting in the Southern District of New York ruled that some aspects of the legislation were too restrictive.

The FFCRA was passed by Congress in March to provide paid leave to employees who were unable to work due to the massive shutdowns that ensued due to COVID-19. Our Firm covered the passage of the legislation, which can be found here. The Department of Labor is the federal agency charged with administering and enforcing the FFCRA. Below are key points of change from the Judge’s ruling that will affect employers and workers living in New York counties encompassed by the Southern District.

Work-Availability Requirement

The DOL permitted some employers to deny employee’s eligibility for paid leave if the employer did not have work available for them due to the pandemic’s effects. Judge Oetken indicated that the work availability requirements were invalid.

Definition of Health Care Provider

The FFCRA permits employers to exclude “health care providers” from the benefits the leave provides. The State argued that the definition of “health care provider” was too broad; essentially, the definition encompassed all employees of a center that provides health care services. As such, the Judge wrote that librarians and cafeteria workers, just to name a few of what could be countless examples, could be excluded from leave under this definition of “health care provider.” As such, the Judge invalidated the current definition.

Intermittent Leave

Judge Oetken struck down the interpretation that an employee needs to obtain consent from their employer to take FFCRA leave intermittently. Intermittent leave, in this context, would take place if the employee took the leave covered by FFCRA in separate blocks, as opposed to during one period.

Documentation Requirements

The State of New York argued that the DOL was imposing more stringent documentation requirements on employees that the FFCRA statute actually required. The DOL indicated that employees should provide documentation to supervisors before taking leave, and that the documentation ought to include the reason for leave and the length of leave requested. The Judge agreed with the State that the statute’s terms were more lax: the statute orders employees to put employers on notice as soon as practicable when the need for leave is foreseeable. Judge Oetken indicated “[t]he documentation requirements, to the extent they are a precondition to leave, cannot stand.”

Implications

The effects of the ruling are as follows:

  • It remains to be seen who will qualify for FFCRA leave now that the work availability requirement has been invalidated.
  • It is possible that many more employees who no longer fall under the definition of “health care provider” will now seek leave under the FFCRA if affected by COVID-19.
  • Employees will not need to obtain consent from their supervisors before taking leave intermittently so long as they are not shortening their leave in a way that poses a risk of spreading COIVD-19 to others. For example: employees can take intermittent leave if caring for their child whose normal childcare needs cannot be met due to COVID-19, but cannot take intermittent leave if coming back early would mean exposing colleagues to the virus.
  • While documentation will be required when taking FFCRA leave, the documentation will not be a prerequisite to taking leave.

Conclusion

It is important to note that Judge Oetken’s ruling only applies to employers and requests for FFCRA leave in the Southern District. The Southern District encompasses the following New York counties: Bronx, New York (Manhattan), Westchester, Sullivan, Rockland, Orange, Putnam, and Dutchess. It remains to be seen whether other federal judges will interpret this in the same manner. We will keep you advised of further developments in this changing landscape in the administration of the FFCRA law.

Jules Halpern Associates LLC

Workplace and Education Law Advisors

Jules Halpern Associates LLC
JULES HALPERN ASSOCIATES LLC is a boutique law firm committed to serving our clients in all facets of their workplace issues. We provide personalized, practical advice that resonates with our clients’ business objectives.
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Jules Z. Halpern

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