August 5, 2020
Authored by: Christy Phanthavong and Lily Kurland
Employers’ efforts to comply with the Families First Coronavirus Response Act (“FFCRA”) were further complicated on Monday when the United States District Court for the Southern District of New York invalidated several key provisions of the Department of Labor’s (“DOL”) Final Rule (or regulations) interpreting the law. Unfortunately, the Court’s holding creates a number of questions on key issues, including retroactivity and the applicability of the decision on a nationwide basis in light of the court’s failure to issue a nationwide injunction. Further, the holding may not be final, because the DOL may appeal the ruling to the Court of Appeals for the Second Circuit. At minimum, it appears likely that the DOL will issue revised Questions & Answers, and potentially revised regulations, in light of Monday’s ruling.
As we await further guidance from the DOL and/or the courts, employers should become familiar with the changed FFCRA landscape and consider how Monday’s ruling may impact their FFCRA policy and practices. Below is a discussion of the four provisions that have been struck down, at least within the Southern District of New York.
The FFCRA statutory language provides that employees are only entitled to leave if they are unable to work “because of” a COVID-19 qualifying reason. The DOL interpreted this language to mean that employees are not entitled to FFCRA leave if their employer has no work available for them, even if the lack of work is the result of a government directive such as a closure or “stay-at-home”