Moving Targets: Federal Judge Strikes Down FFCRA Regulations

Earlier this week, a federal court in New York invalidated several of the Department of Labor’s Families First Coronavirus Response Act (FFCRA) regulations, possibly paving the way for more employees to be eligible for FFCRA leave.

FFCRA allows employers of “health care providers” to exempt those employees from FFCRA leave eligibility. Currently, DOL regulations broadly define health care provider as “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,” as well as employees of any organization contracting with such an entity for certain services.  The court struck down that definition of “health care provider” as allowing an overbroad exemption from leave requirements under FFCRA.

The court also rejected the DOL-imposed requirement that only employees whose employers have work available for them are eligible for leave under the Act. This regulation previously prevented furloughed employees from being eligible for either Emergency Paid Sick Leave or expanded FMLA. Concerning the expanded FMLA portion of FFCRA, the court partially vacated the DOL requirement for employer consent to use that FMLA intermittently.

While this decision is only controlling in the Southern District of New York, its effect may be much further reaching. It remains to be seen whether the DOL will challenge this ruling or adjust its regulations accordingly, or whether other courts will follow suit. Given the negative judicial treatment of these DOL rules, however, employers may want to re-examine their practices with regard to leave under FFCRA to assess whether they should make any changes. Contact an Employers Council attorney to discuss whether this ruling may affect your organization and what beneficial changes you might implement.