NY federal district court ruling may impact DOL FFCRA regulation

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On August 3, 2020, a federal district court judge in New York City issued an opinion and order vacating significant portions of the U.S. Department of Labor’s (DOL) Final Rule regarding the leave provisions of the Families First Coronavirus Response Act (FFCRA).

The Court: (a) invalidated the DOL Rule that FFCRA leave only must be provided in situations where there otherwise is work available to the employee and the employee has not been laid off, (b) declined to extend the exemption from the FFCRA leave rules to anyone who is employed by a health care provider (regardless of whether the person actually provides healthcare services to a patient), (c) invalidated the requirement that an employer must consent to an employee taking intermittent leave and (d) eliminated the DOL regulation's requirements for advance notice and supporting documentation for FFCRA leave.

We expect this ruling will receive considerable publicity from a variety of news sources and law firms. However, the current impact of this ruling is unclear. If applicable nationwide, then there is no guidance on the portions of the regulation which were invalidated beyond the express provisions of the statute, and employers will need to seek guidance from counsel on how to apply the specific statutory provisions. We expect that the case will be appealed and will be winding through the courts for some time. Here is a link to the Court’s ruling.

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