Broader “Worker-Friendlier” COVID Leave Criteria?

The Families First Coronavirus Response Act (FFCRA), effective April 1 to December 31, 2020, requires most businesses with fewer than 500 employees to provide: ● two weeks emergency paid sick leave benefits for employees who cannot work or telework for any one of six COVID-19 related reasons; and ● up to 12 weeks of partially paid family leave to care for one’s child due to COVID-19-related school or other “place of care” closures. See, Federal Coronavirus Workplace Relief (March 23, 2020).

Employers have since relied on the U.S. Department of Labor’s (DOL) rules and frequently-asked-questions to apply these benefits narrowly. However, a recent New York court ruling more favorable to employees may be the precursor for invalidating some of these regulations nationwide. Among that federal district court judge’s directives:

• No-work-available rule shot down. Contrary to the DOL rules, the federal court judge found employers cannot deny FFCRA benefits to otherwise eligible workers on the grounds that they would be “furloughed” (temporarily laid off ) due to slowed or closed operations in any event.
• Narrow definition of health care provider vacated. The FFCRA permits “health care providers” to deny FFCRA leave to their employees. The federal court rejected the DOL’s inclusion of entities and individuals only indirectly involved in health care delivery (e.g., hospital equipment suppliers; a hospital’s janitorial staff). Thus, only actual health care providers — doctor offices, hospitals, health care centers, etc. – can deny such benefits and only to those who actually deliver such services – doctors, nurses, medical assistants, etc.
• No employer consent required for intermittent leave. The judge also invalidated the DOL rule that required remote workers to obtain employer consent to take FFCRA leave intermittently.
• Documentation requirement must be consistent with FFCRA’s language. The court further cut out the DOL rule requiring employees to submit satisfactory documentation of their eligibility in advance of taking FFCRA leave. Rather, a worker may give notice of his/her leave qualification after receiving the first paid workday (or portion thereof) or, for foreseeable emergency paid family leave, “as is practicable.”

Takeaways and Best Practices:

While a holding currently restricted to a single New York federal court, much wider application is possible, for example, by the results of any DOL appeal or by the agency’s agreement to relax such rules nationwide.

Meanwhile, employers should consider implementing practices and procedures consistent with this court’s ruling and obtaining advice of competent legal counsel when fielding FFCRA leave requests.

See also,

• Paid Sick Leave Going Viral – California Cities and Counties Expanding Pandemic-Related Benefits (May 29, 2020)
• COVID-19, I Presume – Workers Compensation Coverage for Diagnosed Workers (May 20, 2020)
• It’s a Wash – COVID 19 Paid Leave and Tax Credits (April 9, 2020)
• COVID-19 Gets Noticed (April 1, 2020)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

August 21, 2020

Broader “Worker-Friendlier” COVID Leave Criteria?