Challenges to the FFCRA Regulations
In a successful legal challenge by the State of New York to the regulations of the Families First Coronavirus Response Act (FFCRA), a New York Federal Judge found some parts to be invalid. In State of New York v. United States Department of Labor, et al., the State of New York claimed several features of the DOL’s Final Rule exceeded the agency’s authority under the statute.
The DOL moved to dismiss stating that New York lacked standing to bring this claim but the Court determined that it did have standing. Both parties also cross-moved for summary judgment and the Court concluded that several features of the Final Rule are invalid. One of the most standout parts of the order is the Court striking the definition of Health Care Provider. If you recall, for the purposes of Employees who may be exempted from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, the DOL defined healthcare 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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
This definition includes any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a State or territory, including the District of Columbia, determines is a health care provider necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.
The Court stated this was “vastly overbroad.” This is obviously concerning for all employers that followed this definition and denied leave based on the DOL’s definition.
In summary, the Court found three other main parts of the FFCRA to be invalid,
-Intermittent Leave- The requirement that employees obtain consent from the employer for intermittent leave for certain reasons. The DOL had limited intermittent leave in certain circumstances, yet the Court did not agree that the DOL explained why employer consent is needed;
-The Work Requirement- The DOL’s requirement that FFCRA leave is available only where the employee had work available to be performed. This would likely be an issue in the circumstance as to whether employers were to provide FFCRA leave to employees that were temporary laid off or furloughed employees; and
-Timing - The timing of documentation supporting the need for FFCRA leave. This speaks to the guidance that obligated employees to provide documentation to the Employer related to leave under the FFCRA prior to taking leave and the Court found this inconsistent with the FFCRA notice provisions.
These are all pieces affecting how employers have been making decisions for several months so this is a huge issue for the Department of Labor moving forward and all the employers that have been relying on these particular regulations to make decisions about whether leave should be provided to the employee.