FFCRA Leave – Federal Court Rule Changes

Introduction

On August 3, 2020, the United States District Court for the Southern District of New York struck down multiple key regulations of the Families First Coronavirus Act (FFCRA). The ruling applies to the following FFCRA requirements:

• Work-availability;
• Employer consent for intermittent leave;
• Submission of supporting documentation before taking leave; and
• Health Care Provider definition.

Work Availability for Leave

The FFCRA regulations state 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 business closure or stay-at-home order.  The Court ruled that it does not matter if work is available for the employee, the employee should still be eligible to take FFCRA leave.

Intermittent Leave

The FFCRA regulations do not provide guidance as to if employees can use FFCRA leave intermittently.  The DOL did provide guidance for intermittent use of leave, but only in specific situations where the use of leave intermittently would not create a risk of exposure in the workplace and with employer consent.  The Court upheld the regulation as it relates to the types of leave that may be used intermittently, but said that employer consent is not required for an employee to use intermittent leave due to school or childcare closure.

Documentation Requirement

The FFCRA regulations state that employees must provide notice of the need for leave either as soon as possible or no later than the first day after such leave is taken.  The DOL’s guidance required employees to request leave ahead of time and submit supporting documentation prior to the leave.  The Court ruled against the advanced documentation requirement and stated that employers can still require documentation that is needed to receive the tax credit but they cannot prevent an employee from starting leave if documentation has not yet been provided.

Healthcare Provider

The FFRCA regulations allow employers to exclude “health care providers” from taking FFCRA leave and defined the term “health care provider” broadly.  The broad definition meant that employers could choose to deny leave to almost anyone employed by a hospital, doctor’s office, health care center, clinic, etc. The Court ruled that the DOL’s definition of a “health care provider” was far too broad but did not provide a new definition. 

Next Steps 

There are still a number of unknowns related to these rule changes, including whether the decision applies to employers outside of New York, if the DOL will appeal, if the DOL will issue new guidance, or if employers will need to provide leave retroactively as it applies to the updated regulations. Paylocity will provide additional information as it is made available.

For more information regarding the Court’s decisions, please click here.

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This information is provided as a courtesy, may change and is not intended as legal or tax guidance. Employers with questions or concerns outside the scope of a Payroll Service Provider are encouraged to seek the advice of a qualified CPA, Tax Attorney or Advisor.