The uncertain future of FFCRA leave

A New York federal court recently struck down parts of the U.S. Department of Labor’s (DOL’s) rule interpreting employee paid sick and extended FMLA leave components of the Families First Coronavirus Response Act (FFCRA). Two national employment law experts, Jeff Nowak and Ellen McCann, discuss the court’s decision and its implications for the future of FFCRA leave – and employers.

Key takeaways

• On April 1, 2020, when the scope of the pandemic first became apparent, Congress passed the FFCRA. DOL quickly issued regulations for implementing this new federal statute. [1:23]
• The State of New York filed suit against DOL, claiming the agency’s regulations 1) unlawfully denied FFCRA leave to otherwise eligible employees and 2) exceeded the DOL’s authority. As a result of the proceedings, the New York federal court invalidated several DOL regulations interpreting the new federal law.
  • The requirement that employees be scheduled to work in order to take a leave of absence. [2:52]
  • The part of the intermittent leave provision requiring the employer’s permission when an employee is caring for a child due to public health concerns, such as COVID-19-related closures of schools or unavailable childcare. [7:30]
  • DOL’s expansive definition of healthcare provider and leave entitlement exemptions. [9:44]
  • The timing of when employees must submit leave documentation to their employers. [15:20]
• The scope of the court’s decisions remains uncertain, but one thing remains clear: DOL must address the court’s decision. That means employers should continue to monitor the situation and look for DOL updates. [17:07]
• Employers can also reduce compliance risks by examining their leave exemptions, application of intermittent leave, stances on work availability, and current leave administration and documentation. [18:39]

Jeff Nowak, Shareholder, Littler Mendelson

Jeff Nowak is a shareholder for Littler Mendelson, P.C., the world’s largest employment practice representing employers. He is a recognized leader on FMLA and ADA issues, helping employers develop comprehensive strategies to achieve compliance with employee leave and accommodation issues.

Ellen McCann
Assistant Vice President, Legal Counsel at Unum’s Employment Law Group

Ellen McCann is an acclaimed national speaker on leave management issues including FMLA and ADA.

More resources:

Ep. 12: Practical advice for return-to-work safety
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Webinar: A roadmap for navigating COVID-19 leave laws
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Ep. 16: Best practices in COVID-19 return-to-work planning. Ep 16 link: https://www.unum.com/employers/resources/hr-trends/episode-16-return-to-work-best-practices