A New York federal court recently invalidated four regulations issued by the U.S. Department of Labor on the Families First Coronavirus Response Act (“FFCRA”):
- employees are not entitled to sick leave if work isn’t available due to COVID-19;
- the “health care provider” definition (holding that it’s much too inclusive, thus excluding millions of workers from paid sick leave);
- employers’ consent is required for intermittent leave; and
- employees must provide advanced notice of leave.
In particular, the court’s ruling on the DOL’s work availability limitation is consequential; due to the pandemic, work may not be immediately available for employees who are still formally employed, and the court ruled that these employees are entitled to FFCRA leave. The court also ruled that employers are required to provide emergency sick leave to any employee who is not qualified to provide healthcare. Thus, office workers and workers in industries which support health care (such as hospital suppliers) are entitled to the leave. Employees are entitled to take sick leave on an intermittent basis without their employers’ consent. Employees need not provide advanced notice of the need for leave, which is a nonsensical requirement in the face of the speed at which events are unfolding, including sudden onset of symptoms.
The result? New York employers should change leave policies to comport with the court’s ruling. And while this decision isn’t binding on employers outside of New York, other courts will face these issues and will look to the decision for guidance. Conservatively, in order to avoid future litigation regarding failure to provide leave, all employers should comply with the decision, defaulting to providing leave to employees with as much flexibility as possible. Contact me to discuss changes to your leave policies or to receive a comprehensive COVID-19 policies update for your handbook.
ABOUT KATHERINE WITHERSPOON FRY
Ms. Fry has 25 years’ experience of litigation and administrative law experience in every Delaware court, the U.S. Court for the District of Delaware, the U.S. Court of Appeals for the Third Circuit, and the United States Supreme Court. She has also represented clients in proceedings before the Delaware and U.S. Department of Labor, the Equal Employment Opportunity Commission, the Merit Employee Relations Board, and other administrative bodies. She counsels executives and companies in employment matters of all types. Her employment practice focuses on discrimination; non-compete defense and enforcement; Department of Labor audits; employment termination; Fair Labor Standards Act issues; creation and review of employee handbooks and policies; employment and severance agreements; executive compensation; and harassment training. She teaches at the Lerner School of Business at the University of Delaware. She speaks frequently on employment topics and has been a repeat guest on WILM’s radio show, “Money and Politics in Delaware.”
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