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Court Invalidates Portions of COVID-19-Related Paid Sick and Family Leave Regulations



A federal trial court has invalidated several provisions of the DOL temporary regulations implementing the paid leave provisions of the Families First Coronavirus Response Act (FFCRA) (see our Checkpoint article). The FFCRA amends the Family and Medical Leave Act to require certain employers to provide paid emergency childcare leave to employees unable to work or telework due to a need to care for a child because a school or place of care is closed or a childcare provider is unavailable because of COVID-19. The FFCRA also requires certain employers to provide 80 hours of paid sick time to full-time employees who are unable to work or telework for specified COVID-19-related reasons (see our Checkpoint article). Arguing that the regulations unduly restrict FFCRA paid leave, the state of New York challenged four features: the “work-availability” requirement; the definition of “health care provider”; the intermittent leave provisions; and the documentation requirements.

Agreeing with the state, the court invalidated—(1) the restriction that an employee may not take FFCRA paid leave if the employer does not have work for the employee (e.g., because the employee is furloughed); (2) the definition of “health care providers” (whom employers may elect to exclude from leave benefits), which was determined to be overly broad; (3) the requirement that an employee secure employer consent for intermittent leave; and (4) the requirement that the employee provide documentation to the employer (indicating, e.g., the reason for and duration of the leave) before the leave begins. The remainder of the regulations, including the ban on intermittent leave for certain qualifying reasons and the substance of the documentation requirements, are not affected by the ruling.

EBIA Comment: This ruling creates uncertainty for employers seeking to comply with FFCRA’s paid leave requirements. Among other things, it is not clear whether the decision will be applied nationwide or retroactively. Employers should consult with their advisors as we wait to see if the DOL appeals and requests a temporary injunction and/or drafts new regulations. For more information, see EBIA’s Group Health Plan Mandates manual at Sections XVI.D (“Expanded FMLA Leave for Emergency Childcare”) and XVI.E (“Emergency Paid Sick Time”), and EBIA’s Fringe Benefits manual at Section XXII.G.4 (“Federally Mandated Paid Sick Leave (2020 Only)”).

Contributing Editors: EBIA Staff.

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