August 03, 2020

Ipse Dixit & More Leave FFCRA Regulations in Question

Today, a judge ruled (NYS v DOL (SDNY 8-3-2020)) that four provisions of the Department of Labor’s (DOL) Families First Coronavirus Response Act (FFCRA) regulations are not enforceable.

Very, quick recap. If you have fewer than 500 employees, you know by now (I hope) that your employees may be eligible for paid leave if they need time off from work for any one of six qualifying reasons under the FFCRA. Six reasons qualify for Emergency Paid Sick Leave (EPSL) and one of those six also qualifies for Emergency Family and Medical Leave (EFML). If this is not ringing a bell, check out FiveL’s FREE webcast, “COVID-19 Update for Employers: The FFCRA Regulations.”

The judge’s ruling. In short, the four provisions found unenforceable are:

  1. Work-Availability Requirement. An employee does not have to need leave from work to be eligible for EPSL or EFML. Even if the employee is furloughed or you otherwise have no work for the employee, if the employee is also not available for work because of a qualifying reason, s/he may be eligible for EPSL or EFML.
  2. Definition of Health Care Provider. The judge ruled the DOL’s definition that can be used to exclude certain employees is “vastly overbroad.” It could include, “an English professor, librarian, or cafeteria manager at a university with a medical school.” Instead, the definition should be applied only to employees who are “capable of furnishing healthcare services.”
  3. Intermittent Leave. The employee gets to unilaterally choose. The employer does not have to consent or agree to the employee’s intermittent use of EFML.
  4. Documentation Requirements. An employer may not require documentation confirming the need for EPSL or EFML before or as a precondition to granting leave.

Implications? The case may be appealed. So, this story may not be over yet. If it stands, here’s my question. If an employee is furloughed and has an FFCRA qualifying need for leave, is the employee eligible to triple dip: get regular unemployment insurance benefits, Pandemic Unemployment Compensation (assuming it’s extended), and EPSL or EFML? If not, who decides which the employee may or must take first?

Now What?! Stay tuned!!! Talk to your company’s employment counsel regarding application of this latest interpretation.

Chuckle: I had my cell phone’s dictionary handy while reading the decision. From “ipse dixit,” “exogenous criterion,” “purposivistic approach,” “intestitial details,” “reticulated schemes,” and more – I got a few chuckles and my mental workout for the day.  Thanks, your Honor!