Alert – Tread Carefully With FFCRA Paid Leave

Volume: 19 | Issue: 53
August 24, 2020

Recently, a New York federal district court found that four provisions of the Department of Labor (DOL)’s regulations implementing the Families First Coronavirus Response Act (FFCRA)’s paid leave provisions are invalid. While this decision is likely to be appealed, it has muddied the waters for this new law and will have an impact upon employers’ leave decisions.

After the enactment of the FFCRA, the DOL issued guidance and eventually regulations to help us apply the new emergency paid sick leave and expanded FMLA leave provisions. The State of New York challenged the DOL’s regulations, arguing that the DOL’s interpretation of the new law was wrong. The district court agreed and ruled that four aspects of the regulations are invalid:

    1. the DOL’s determination that employees are not entitled to paid leave or FMLA leave if their employers do not have work for them;
    2. the DOL’s adoption of a broad definition for the term “health care provider”;
    3. the DOL’s determination that intermittent leave is only permitted if the employer agrees; and
    4. the DOL’s pre-leave documentation requirements.

Whether the New York court’s decision will be applied nationwide is unclear, but it is certainly possible that a federal court in Nevada could rely upon the court’s analysis as persuasive authority to reach a similar decision against a Nevada employer. The DOL has not issued any direction to employers regarding the court’s decision, and KZA is monitoring the matter to determine whether it will be appealed.

In the meantime, if you are making FFCRA decisions that require reliance upon one or more of these four provisions of the regulations, contact a KZA attorney for assistance.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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