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New York Ruling Creates Uncertainty over Parts of the FFCRA

Tonya Fletcher SPHR, SHRM-SCP
by Tonya Fletcher SPHR, SHRM-SCP on August 10, 2020

In response to COVID-19, the Families First Coronavirus Response Act was signed into law on March 18, 2020, and became effective on April 1, 2020. The U.S. Department of Labor issued regulations to assist employers and employees with compliance on their responsibilities and rights under the FFCRA. Shortly after the DOL issued its FFCRA regulations, the state of New York filed a lawsuit.

 A New York federal district court has now struck down parts of the DOL’s regulations regarding the FFCRA. In an August 3 order, the court held that the DOL exceeded its authority to interpret the FFCRA when it issued its’ guidance. The ruling creates uncertainty over parts of the FFCRA as well as whether the ruling applies on a national level.


The four provisions of the FFCRA noted in the ruling are:

  • Health Care Provider Definition
  • Work Availability
  • Documentation Requirement
  • Intermittent Leave

Health Care Provider Definition

The FFCRA permits employers to exclude healthcare providers from paid leave benefits. The state of New York challenged the DOL’s definition of healthcare provider as overbroad because it includes employees, such as a cafeteria worker, who do not provide the actual healthcare services. The court struck down the DOL healthcare provider definition.


Work Availability

The FFCRA provides paid leave benefits for a qualifying COVID-19 related reason to employees who are unable to work or telework. The DOL excluded employees whose employers did not have work for them. The court felt that this exclusion was incorrect.


Documentation Requirement

The DOL required the employee to provide the employer with certain documentation before taking leave. As a precondition to taking leave, the court found that documentation is not required before an employee takes FFCRA leave.


Intermittent Leave

The FFCRA did not address intermittent leave and the DOL limited the availability of intermittent leave in their regulations. The court let stand the regulation where intermittent leave is limited to situations where there is no risk the employee may spread the virus to others. However, they found that the DOL did not have justification to require employer consent to intermittent leave.


In addition to demonstrating the issues with rushing through legislation and regulations, the New York federal district court’s decision leaves open many questions. Additionally, the DOL could seek a stay to the decision, file an appeal, and/or create new rules or guidance. While this was issued in New York, the ruling may vastly expand leave entitlements under the FFCRA. At this time, the DOL has not issued a response to the ruling. 

Tonya Fletcher SPHR, SHRM-SCP
Tonya Fletcher SPHR, SHRM-SCP

Tonya is the Labor Compliance Manager at FrankCrum. In this role, she leads the FrankAdvice team of HR consultants and manages the delivery and content of best practice HR information to client owners and managers. When she’s not at work, Tonya enjoys international travel.