Potential Changes to DOL’s Final Rule for Leave under FFCRA

Earlier this summer, a NY District Court ruled that a number of provisions in the DOL’s Final Rule for the FFCRA were invalid because they exceeded the DOL’s rule making authority. To date, it is unclear whether this court ruling impacts employers outside of New York, but employers should be aware of the following possible changes to the FFCRA:

Work Availability

The DOL’s Final Rule denied paid leave to employees whose employers did not have work for them, i.e., employers who shut down and had no work for employees did not have to provide paid leave to eligible employees under FFCRA. The NY ruling invalidated this “work availability” criteria, but did not consider how furloughed employees should be treated. 

Health Care Providers

Under the DOL’s Final Rule, “health care providers” were excluded from coverage and not eligible for FFCRA leave. The definition of “health care provider” included: anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. The NY Ruling found this broad definition invalid and reasoned that the scope of excluded health care providers should be narrowed to employees who provide health care services using the FMLA’s definition of “health care provider.” https://webapps.dol.gov/elaws/whd/fmla/3.aspx?Glossary_Word=PROVIDER

Intermittent Leave

The DOL’s Final Rule required employer consent for intermittent leave regardless of the reason for the intermittent leave. The NY Ruling found that employer consent should not be required for intermittent leave when the leave is for a reason unrelated to possible transmission of Covid-19. Put another way, when FFCRA leave is needed to care for a child whose school is closed, or for another covered reason which does not implicate public health considerations, employer consent to intermittent leave is not required.

Notice and Documentation

The DOL’s Final Rule requires employees submit documentation before taking FFCRA leave. The NY Ruling found that submitting documentation in advance of taking leave was not contemplated by the FFCRA, which solely requires notice before taking leave. Accordingly, while employers can require notice prior to taking leave, verification cannot be required as a pre-condition of taking FFCRA leave.

Bottom Line: It is unclear how or whether the NY Ruling impacts out of state employers and if the court’s invalidation of the DOL’s Final Rules described above will apply retroactively. Employers should, however, be alert to possible amendments of the Final Rules. Employers should also evaluate prior denials of FFCRA leave based on the specific rules invalidated by NY Ruling to determine if there is potential exposure should the NY Ruling be applied nationwide and have retroactive effect.    

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