Congress passed the Families First Coronavirus Response Act (FFCRA) in March 2020, which provided for certain paid sick leave and expanded, paid FMLA leave for certain employees unable to work due to COVID-19. Generally, the FFCRA applies to employers with less than 500 employees and provided for up to two weeks paid sick leave and 12 weeks of paid FMLA (limited to certain COVID-19 related bases).

Following the FFCRA’s implementation, the Department of Labor (DOL) promulgated a Final Rule implementing the law’s provisions (Final Rule). The State of New York subsequently brought a suit claiming that several features of the Final Rule exceeded the DOL’s authority under statute. On August 3, 2020, Judge Paul Oetken of the Southern District of New York agreed, holding:

  • The Final Rule provided that employees were not entitled to FFCRA leave if their employer had no work for them. Judge Oetken rejected this as unsupported by the FFCRA; as a result, employees still employed but without work to do may be entitled to certain paid leave under the FFCRA;
  • While the FFCRA excludes healthcare providers from the paid leave requirements, the judge found the DOL’s definition of healthcare provider to be overbroad, in that it included all employees of a healthcare organization, even if they are not healthcare professionals;
  • The ruling expanded the permissibility of intermittent leave under the FFCRA: the Final Rule had allowed such only where the employee posed a threat of spreading COVID-19, but the Court held that the FFCRA did not limit intermittent leave to that basis; and
  • The Court held that the DOL’s rule requiring documentation for the need for leave went beyond the requirements in the statute.

The balance of the Final Rule continues to stand.