In an August 3, 2020 Opinion and Order, the U.S. District Court for the Southern District of New York invalidated multiple provisions of the U.S. Department of Labor’s (DOL) Final Rule implementing the leave-related requirements of the Families First Coronavirus Response Act (FFCRA). The federal judge ruled that numerous provisions in the rule were unlawful and exceeded the DOL’s authority, including:

  • The requirement that employers have work available for an employee in order for the employee to be able to use emergency paid sick leave or emergency family and medical leave under the FFCRA;
  • The expansive definition of “health care providers” to whom employers may deny FFCRA leave;
  • The requirement that an employer consent to intermittent usage of emergency family and medical leave under FFCRA; and
  • The requirement that an employee provide documentation supporting a FFCRA leave request prior to taking leave.

The court made clear that, while it was invalidating these portions of the rule, the remainder of the rule will continue to operate in the absence of the invalid provisions.

What Employers Should Do

Employers covered by the FFCRA (i.e., private employers with fewer than 500 employees and certain public employers) should consider whether to revise their FFCRA policies and procedures to align with the federal court’s conclusions. In our previous blog concerning this legal challenge, we suggested employers exercise caution when denying an employee’s request to use FFCRA leave intermittently, be judicious when denying leave based upon an employee’s status as a “health care provider,” and beware when delaying or denying requested leave due to documentation deficiencies.

Now that we have the benefit of a reasoned judicial opinion, employers (in conjunction with their legal counsel) should determine whether to act on the following takeaways extrapolated from the opinion:

  • Employees may take FFCRA leave even if the employer does not have work available for the employee on a particular day, for example, during a temporary shutdown caused by a stay-at-home order
  • Employers may not deny FFCRA leave to employees on the basis that the employer in some way provides health or medical services if the employee is not a health care provider. For example, an employer cannot deny FFCRA leave to an English professor, librarian, or cafeteria manager at a university with a medical school
  • Employers may not prohibit intermittent usage of emergency family and medical leave by employees caring for their child during a coronavirus-related school or place of care closure
  • Employers may not delay commencement of an employee’s FFCRA leave until receipt of supporting documentation; instead, the employer should require notice and documentation in a timeframe that is reasonable and practicable in accordance with the FFCRA statute.

What ReedGroup is Doing

ReedGroup is analyzing the ruling’s impact on its offerings and will work with impacted clients to determine whether any modifications to their FFCRA leave plans and processes are appropriate. ReedGroup will continue to monitor developments related to the litigation, including any (1) potential motion for reconsideration or appeal by the DOL, and (2) promulgation of amendments to the DOL rule as a result of the court’s decision. Continue to stay tuned on our blog.

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.


Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.

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