The LawView® Newsletter
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By:         Michael J. Ernst, Partner

On August 3, 2020, a federal court in New York issued a decision vacating certain provisions of the Department of Labor’s (“DOL”) Final Rule on the Families First Coronavirus Response Act (“FFCRA”). This ruling by the U.S. District Court for the Southern District of New York will be difficult and problematic for many employers and will create substantial uncertainty in the workplace.
FFCRA, which was enacted in March, requires employers with fewer than 500 employees to provide both emergency family leave and sick leave to certain employees who are unable to work because of the COVID-19 pandemic. Only a few weeks after the statute was passed, the DOL issued a Final Rule on April 1, 2020, implementing FFCRA – which the state of New York soon challenged in federal district court.
The effect of the court’s ruling is that certain aspects of FFCRA are now more favorable to employees. Unfortunately, it is not apparent from the ruling whether it applies nationwide or only in the Southern District of New York, where the court is located. For now, it is clear that these four rules definitely do not apply to the New York counties located the Southern District of New York:  Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester.

The court invalidated the following DOL rules:
Requirement That Work Be Available For An Employee To Use Leave
DOL Rule:           The DOL said that for an employee to use Emergency Paid Sick Leave (“EPSL”) or Emergency Family and Medical Leave (“EFMLA”), the employer had to have work available for them during the time they needed leave. For instance, if an employee was furloughed while sick with COVID-19, they would not be eligible for EPSL.
Court Ruling:        Availability of work is irrelevant. If an employee is still employed, whether on the schedule or not, they should be allowed to use FFCRA leave for qualifying reasons.

Requirement That Employers Agree To Intermittent Leave
DOL Rule:           Employees must get approval from their employer to use intermittent leave to care for their children when their school or place of care is unavailable because of COVID-19.
Court Ruling:        If an employee needs intermittent leave (partial weeks or partial days off) to care for their child whose school or place of care is unavailable because of COVID-19, the employer must allow such leave. 

Requirement That Employees Provide Documentation Before Taking Leave
DOL Rule:           Employers could require that employees provide certain documentation before being allowed to take FFCRA leave or before designating the leave as EPSL or EFMLA.
Court Ruling:        Employers can still require documentation (which is necessary to get their tax credit), but they can’t prevent an employee from starting leave until the documentation is received. The law clearly states that an employee must provide notice “as is practicable” when taking EFMLA leave and after the first workday of leave when taking EPSL.  

Definition Of Health Care Provider (For The Purpose Of Exemption From Leave)
DOL Rule:           The DOL had defined health care providers broadly, to include anyone who works for a healthcare entity and many who contract with a healthcare entity. (The rule was so broad that a custodian working at a drugstore or an English professor at a university with a medical school could be exempt.)
Court Ruling:        The court ruled that the DOL definition was too broad. However, the court did not provide a new definition. We recommend that employers apply the exemption only to those employees capable of directly providing healthcare services. 
We will be watching closely for activity in this case and will let employers know if and when things change or become clearer. Until there is further activity in the case – which may clarify whether the rules remain intact throughout the rest of the country – employers should err on the side of caution when administering FFCRA leaves and should assume the particular rules in question no longer apply.

Stokes Carmichael & Ernst LLP (“SCE”) has represented businesses in employment law – as well as in commercial law and collections, business law, and general civil litigation – for over 48 years. SCE provides sound legal advice at a reasonable cost and is experienced in representing employers in a myriad of issues. Both the author and the firm are rated by "AV® Preeminent®" by Martindale-Hubbell® (the highest rating given by the legal industry’s premier peer-review rating system), reflecting "Preeminent" legal ability and "Very High" general ethical standards. Mr. Ernst has also been continually recognized as one of "Georgia’s Legal Elite," as a "Georgia Super Lawyer®," and as a "Top Rated Lawyer®."

If you have any employment law questions regarding your company, please contact Mike Ernst at 404.603.3441 or