Legal Challenge to FFCRA: What You Need to Know

What we know about the long-term impacts of COVID-19 is constantly changing…and so is COVID-19 legal guidance. The Families First Coronavirus Relief Act (FFCRA) went into effect on April 1, 2020, the same day that Department of Labor (DOL) issued “temporary” regulations explaining the obligations of employers under the FFCRA’s paid sick time (PSLA) and expanded family medical leave (EFMLA) requirements. The state of New York brought a lawsuit against the U.S. Department of Labor in April challenging provisions of the DOL’s regulations on the FFCRA. The U.S. Court for the Southern District of New York responded to competing motions for summary judgment and generally aligned with New York’s position on the disputed topics, found below.

Intermittent Leave Consent Prohibition

The DOL guidelines permit employees to take intermittent leave with the consent of the employer and only for qualifying conditions that correlate with a higher risk of COVID-19 infection. The court did not take issue with the qualifying conditions regulation, reasoning that it “advances Congress’s public health objectives.” However, the court ruled that the DOL regulations did not sufficiently explain why employer consent is required for the qualifying conditions that do not implicate the same public health considerations. For this reason, the employer-consent requirement was struck down.

Work Availability Requirement

Employees may use EPSLA under the FFCRA if they are:

1. Subject to a COVID-19 related quarantine or isolation order;
2. Advised to self-quarantine by a health care professional;
3. Experiencing symptoms of COVID-19 and are seeking a diagnosis;
4. Caring for an individual experiencing any of the first three requirements;
5. Caring for a child if the school or place of care is unavailable due to COVID-19; or
6. Experiencing any other substantially similar condition.

EFMLA may only be used when the employee is unable to work due to a need to care for his or her child if the school or place of care is unavailable due to COVID-19.

The DOL guidelines state that paid leave under FFCRA is unavailable to employees when the employer does not have work for the employee. This “work availability requirement” applies to EPSLA qualifying absences (1), (4), and (5), and the EFMLA qualifying absence. The court struck down the “work availability requirement” finding that whether work is actually available is somewhat irrelevant to the question of eligibility for benefits. This could result in a slew of claims for benefits by furloughed and laid-off workers. 

Health Care Provider Definition

The DOL regulations contained a definition of “health care provider” to describe who may be excluded by their employer from receiving PSLA or EFMLA under the FFCRA. The court struck down the DOL’s definition of “health care provider” as too broad compared to the FFCRA and chose instead to rely more on the skills of the employee than the identity of the employer.

Documentation Requirements

The DOL regulations require employees seeking to use EPSLA or EFMLA to submit documentation outlining:

• The employee’s name;
• Duration of leave;
• A qualified reason for leave; and
• An oral or written statement that the employee is unable to work due to the qualified reason for leave.

The New York court struck down this documentation requirement due to inconsistencies between the DOL regulations and the FFCRA, which requires employees to follow “reasonable notice procedures” after the first workday an employee receives paid sick time under the Act.

FFCRA regulations remain in place for Illinois employers. However, the New York decision is illustrative of how courts may rule on future challenges to FFCRA. We will ensure The Workplace Report readers are kept up to date on any future decisions impacting Illinois employers.