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Update: Our latest post about the DOL’s FFCRA guidance can be found here.


The U.S. Department of Labor’s (DOL’s) recently released Temporary Rule and Q&A guidance concerning the federal Families First Coronavirus Response Act (FFCRA) provided much-needed detail for employers and third-party leave administrators grappling with administering the FFCRA’s new paid leave entitlements.

However, the DOL’s regulations and Q&As contained some surprises for those who were relying on the legislative text of the FFCRA to gear up for the law’s April 1, 2020 effective date. Some of the DOL’s new requirements (discussed in our earlier blog) have resulted in an expression of “deep concern” from members of Congress who believe portions of the DOL’s guidance will cause delay and denial of leave to eligible employees in contravention of the FFCRA. Key Democrats from the U.S. House and Senate Committees on health and labor have demanded that the DOL revise its guidance to comport with the “text and congressional intent of the FFCRA.” The specifics of their concerns can be read here.

NY Attorney General sues DOL over constraints in FFCRA temporary rule

The DOL’s regulations have come under similar attack in the courtroom. On April 14, 2020, the New York Attorney General filed a lawsuit in the U.S. District Court for the Southern District of New York against the DOL and Secretary of Labor. In the legal complaint, the Attorneys for the State of New York allege that the DOL’s regulations contain guidance that is contrary to the text of the FFCRA, unlawfully authorizes unsupported exclusions from employee eligibility, and imposes restrictions and burdens on employees unintended by Congress.

Specifically, the lawsuit challenges the portions of the DOL regulations that:

  • Mandate that an employee submit documentation prior to taking leave, including (but not limited to), a statement containing the following information (1) the employee’s name, (2) the date(s) for which leave is requested, (3) the COVID-19 qualifying reason for leave, and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason;
  • Require an employee and employer to agree to intermittent use of emergency paid sick leave and emergency family and medical leave, essentially allowing employers to prohibit an employee’s intermittent leave usage;
  • Require that an employer have work available for an employee in order for the employee to be eligible for leave (e.g., the employee cannot be furloughed or not scheduled to work due to a downturn in business or a shutdown caused by a generally applicable stay-at-home order); and
  • Expand the definition of “health care providers” who may be denied leave to include almost anyone employed at a facility where medical services are provided, by a company that contracts with such a facility and supports the operation of the facility, or by a company that produces medical products or COVID-19 related medical supplies.

The New York Attorney General argues that these constraints on employees’ entitlement to leave under the FFCRA are unlawful because they aren’t supported by the text of the FFCRA and they violate Congressional intent. She has already filed a motion for summary judgment seeking a ruling from the court vacating “the challenged restrictions to restore the FFCRA to its intended effect.”

Our point of view: employers should follow the DOL’s guidance, absent further legislative action or a judicial ruling 

If you’ve made it this far in the blog, you’re probably waiting to find out what these challenges mean for your business. It’s important to remember that there has not been any judicial ruling invalidating provisions of the DOL’s rule. Nor has the DOL changed its existing guidance. However, these pieces of advocacy put employers on notice that more changes may be coming. In addition to a potential block by the judiciary, Congress could pursue a variety of avenues to override the DOL’s rule.

In the meantime, employers should exercise caution when denying an employee’s request to take intermittent emergency paid sick leave or emergency family and medical leave. Employers should also be judicious when denying an employee leave based upon the employee’s status as a “health care provider.” And employers should be very careful about delaying or denying requested leave due to documentation deficiencies, particularly where the leave is requested in connection with an employee’s or a close family member’s COVID-19 diagnosis, symptoms, or exposure. Keep in mind that the FFCRA is intended not only to provide employees with leave and job protection, but also to minimize the presence of potentially contagious employees in the workplace.

Continue to stay tuned on our blog as we follow these fast moving developments. We will continue to monitor developments and the potential impact for employers. And remember, if in doubt about your legal obligations and what rules to follow when administering your leave policies, always consult employment counsel.

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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