Federal Court in New York Vacates Parts of U.S. Dept. of Labor FFCRA Regulations

On August 3, 2020, in New York v. United States Department of Labor, the U.S. District Court for the Southern District of New York  (J. Oetken) ruled that the DOL exceeded its authority by enacting FFCRA regulations (29 CFR Part 826) that are "unreasonable" in light of the FFCRA's statutory language and the underlying intent of Congress. The court reasoned that although the COVID-19 pandemic has required public and private entities to act swiftly and decisively, courts are directed to uphold only reasonable regulations, and the court found certain aspects of the DOL's FFCRA regulations to be unreasonable. 

The State of New York raised the following four challenges to the DOL's FFCRA regulations effective April 1, 2020:

1. the regulations improperly make paid leave unavailable to workers when their employer has no work for them to do (including work from home);
2. the regulatory definition of "health care provider" is overbroad and conflicts with the FFCRA's definition of "health care provider";
3. the regulations' overly restrict employees' right to take paid leave on an intermittent basis; and
4. the regulations' improperly require that workers must provide supporting documentation for their need for FFCRA leave prior to taking it.

The court agreed with the challenges raised by the State of New York, and ruled that each offending portion of the DOL regulations is severable from the remainder of the regulations. The court vacated the following aspects of the regulations:

• the work-availability requirement;
• the definition of "health care provider";
• the requirement that an employee secure employer consent before being entitled to take FFCRA leave on an intermittent basis; and
• the requirement that employees must provide supporting documentation before taking FFCRA leave; employers are still entitled to supporting documentation, but such documentation can be required ahead of time only when the need for leave was foreseeable.

The court upheld the remainder of the DOL FFCRA regulations, including the ban on taking intermittent leave for certain qualifying reasons. 

The DOL will no doubt appeal this ruling to the U.S. Court of Appeals for the Second Circuit, and the same issues will likely be decided by federal courts in other parts of the country. At this time, the law on this subject is far from settled. This ruling is not binding on federal courts in the Sixth Circuit (i.e., Michigan, Ohio, Kentucky and Tennessee). We will continue to monitor and provide updates on other federal court decisions addressing this issue. 

If you have questions or need advice on how this decision impacts your organization's FFCRA policies or other leave policies, please contact a member of our Labor & Employment Group.