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New York Judge Vacates Parts of FFCRA Final Rule

Posted: August 17, 2020

On August 3, 2020, the Federal District Court for the Southern District of New York determined that the Department of Labor (DOL) overstepped its authority with respect to certain key regulations promulgated under the Families First Coronavirus Relief Act (FFCRA). The State of New York sued the DOL in federal court arguing the DOL’s interpretation of the FFCRA unlawfully narrowed workers’ eligibility for leave provided under FFCRA. The court sided with New York and vacated the portions of the Final Rule related to: (1) the “work-availability” requirement; (2) the definition of “health care provider;” (3) the provisions relating to intermittent leave; and (4) the documentation requirements. For now, this decision only impacts the Southern District of New York, as we wait to see if the DOL will appeal to the Second Circuit or revise portions of the Final Rule.

In response to the COVID-19 pandemic, Congress passed the FFCRA, which provides paid leave to eligible employees who are unable to work due to reasons related to COVID-19. Under the FFCRA, employers with fewer than 500 employees are required to provide paid sick leave (Emergency Paid Sick Leave Act (EPSLA)) and paid emergency family leave (Emergency Family and Medical Leave Expansion Act (EFMLEA)). Congress subsidizes the cost of leave by providing employers an offsetting tax credit.

Under the EPSLA, employees who are unable to work due to a qualifying COVID-19-related condition are eligible for two weeks of leave. Under the EFMLEA, employees who are unable to work because they must care for a dependent child due to COVID-19 are eligible to take up to 10 weeks of leave.

Consistent with Congress’ directive, the DOL promulgated a Final Rule implementing the law’s provisions. On August 3, 2020, a federal judge vacated parts of Families First Coronavirus Response Act’s (FFCRA) Final Rule.


“Work-Availability” Requirement

The FFCRA provides that to be eligible for EPSLA or EFMLEA, an employee must be unable to work or telework. The Final Rule, however, excludes from these benefits employees whose employers do not have available work for them. The court found this requirement unreasonable and inconsistent with the FFCRA. This means an employee may be eligible for EPSLA or EFMLEA even if the employer does not have work available.


Definition of “Health Care Provider”

Under the FFCRA, an employer may exclude “health care providers” from leave benefits. When the DOL issued the Final Rule, many observers noted the expansive definition of “health care provider.” Unlike the fairly narrow definition contained in the FMLA, the Final Rule’s definition of “health care provider” included, among other things, “anyone employed at any doctor’s office, hospital . . .  nursing home . . .  or any similar institution[.]” The court noted that the DOL conceded that an English professor, librarian, or cafeteria manager at a university with a medical school would be “health care providers” under the Final Rule.

The FMLA, which provides the FFCRA’s statutory framework, defines a “health care provider” as “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.” 29 U.S.C. § 2611(6).

The court concluded that the Final Rule’s definition of “health care provider” is vastly overbroad. Under this newly narrow interpretation, many more employees are eligible for paid leave.


Intermittent Leave

The Final Rule permits employees to take EFMLEA intermittently, with the employer’s consent. Notably, the FFCRA does not contain any language or provisions regarding intermittent leave. The DOL created rules regarding intermittent leave, one of which required employees to obtain employer permission for certain qualifying conditions.

The court found the Final Rule failed to explain why employer consent is required. This means employees may take intermittent leave to care for a child without seeking employer permission so long as there is no increased risk that the employee may transmit the virus to the workplace.


Documentation Requirements

The Final Rule requires that prior to taking leave, employees submit to their employer documentation indicating their reason for leave, the duration of the requested leave, and, when relevant, the authority for the isolation or quarantine order. The FFCRA, however, requires an employee to provide notice as soon as “practicable” or “reasonable.”

The court held that the Final Rule’s documentation requirement imposes a different and more stringent precondition to leave, and therefore, is inconsistent with the statute. This means an employee does not need to provide documentation as a precondition to leave. The court found that employees cannot be required to provide documentation as a precondition to taking FFCRA leave.



The court severed and vacated the portions of the Final Rule discussed above. For now, absent a stay, this decision is the law of the land in the Southern District of New York. It is likely the DOL will appeal this decision to the Second Circuit. Another option is that the DOL may make revisions to the Final Rule. Employers with operations in the Southern District of New York should consult with employment counsel and evaluate whether their FFCRA leave policies need to be revised.