On April 1, 2020, the United States Department of Labor (DOL) promulgated its Final Rule implementing the Families First Coronavirus Response Act (FFCRA). The FFCRA requires covered employers to offer emergency paid sick leave (EPSLA) and emergency family and medical leave (EFMLEA) to employees under various circumstances related to the COVID-19 pandemic, summarized in more detail here.

Since implementation, employers have scrambled to understand their obligations under the FFCRA and to provide the leave required under the new legislation. Shortly after the DOL issued its regulations, the State of New York filed a lawsuit in the Southern District of New York, State of New York v. United States Department of Labor, Case No. 20-CV-3020 (JPO), and simultaneously moved for summary judgment, attacking various requirements set forth in the regulations. On April 28, 2020, the DOL cross-moved for summary judgment and to dismiss for lack of standing.[1]

On August 3, 2020, the court ruled that four portions of the DOL’s Final Rule should be severed because they are invalid. The court specifically held the following:

(1) the so-called “work-availability requirement,” which provides that leave benefits are not available to employees seeking to take EPSLA due to a quarantine or isolation order, in order to care for an individual who is subject to such an order by a health care provider or the government, or to care for a child whose school or place of care is closed because of COVID-19 or trying to take leave under EFMLEA if their employers “do[] not have work” for them, is invalid;

(2) the regulations’ definition of “health care provider” was overbroad because it arguably would enable an employer to deny leave benefits to “an English professor, librarian, or cafeteria manager at a university with a medical school” based on the identity of the employer as opposed to the “skills, role, duties, or capabilities of a class of employees”;

(3) employees should not be required to obtain employer consent to take intermittent leave under FFCRA; and

(4) the DOL’s requirement that an employee provide documentation to an employer before taking leave is invalid.

The court did not specify whether it intended its decision to apply nationwide. However, other jurisdictions could follow the court’s lead.

The decision creates a myriad of questions for employers to consider regarding compliance with the FFCRA. For example, what definition of healthcare provider should employers apply? And, how does the FFCRA apply in the context of furloughs, where there is “no available work”? In proceeding, employers should familiarize themselves with the court’s ruling and closely monitor guidance on how to comply with the FFCRA, including whether the DOL responds to the court’s ruling and/or modifies the regulations. Cautious employers, regardless of location, may wish to heed the court’s ruling and avoid denying leave benefits based on the DOL regulations rejected by the court. Given the absence of guidance on how to proceed, employers are encouraged to work with counsel when questions regarding FFCRA leave arise.


[1] The court found the State had standing.