New York Court Vacates Four Provisions of the FFCRA Final Rule

Earlier this week a federal court in New York vacated four key provisions of the U.S. DOL’s Final Rule implementing the Families First Coronavirus Response Act.  In April, the State of New York sued the DOL claiming that the DOL had exceeded its statutory authority in a way that denied FFCRA leave to eligible employees. The District Court largely agreed with the state of New York and vacated four provisions of the DOL’s Final Rule. Specifically, the Court vacated the provisions: 

  1. That employees are only eligible for paid FFCRA leave where the employer had work available (This opens the door for furloughed and laid-off employees to make claims for FFCRA paid leave); This could be huge.
  2. Defining healthcare providers that can be declared exempt from the protections of the FFCRA. (This would eliminate a health care provider’s ability to exempt it’s employees from the FFCRA.); 
  3. That employees may only take intermittent leave for certain reasons if their employer consents. (This would allow employees to take intermittent leave to care for a child without employer permission.); and
  4. That employees must provide documentation before taking FFCRA leave. (Employers would still be able to require documentation, just not before the employee began leave.)

 Before you start pulling your hair out, we do not know if or how this ruling will impact those of us blessed to live and work in the Fifth Circuit. This ruling was issued by the United States District Court for the Southern District of New York. Rulings of this Court will ordinarily not be binding on the Federal Courts of Louisiana. However, we can expect similar suits to be filed in other jurisdictions. Of course, if you employ employees in the jurisdiction of the Southern District of New York, this ruling will be controlling if it stands.     It is very likely that the DOL will either appeal this judgment on you or amend its Final Rule in such a way to make it compliant with this ruling. In the meantime, employers should make themselves familiar with this ruling and determine what, if any, steps they should take. You can read the opinion here:  https://www.fmlainsights.com/wp content/uploads/sites/813/2020/08/State-of-NY-v.-USDOL.pdf  I will track the progress of this case through the inevitable appeals process and keep you informed. As always, call me if you have any questions.

U.S. DOL Issues New FFCRA Q&A’s

The U.S. Department of Labor recently issued yet more FFCRA Questions and Answers. You can find the new Q&A’s here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions Numbers 89 to 93 are new.

I have summarized the new Q&A’s below, but I would encourage you to read the full, original Q&As.

89: I hire workers to perform certain domestic tasks, such as landscaping, cleaning, and child care, at my home. Do I have to provide my domestic service workers paid sick leave or expanded family and medical leave?

Yes if they are your employees, as opposed to independent contractors. This will generally hinge on whether or not the workers are economically dependent upon you for the opportunity to work.

90. If I am employed by a temporary placement agency that has over 500 employees and am placed at a second business that has fewer than 500 employees, how does the leave requirement work? Are one or both entities required to provide me leave?

The temporary staffing agency is not covered by the FFRCA because it has more than 500 employees. The second business may be required to provide you with FFCRA leave, depending upon whether or not it is your joint employer.

91. My employees have been teleworking productively since mid-March without any issues. Now, several employees claim they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19, even though these employees have been teleworking with their children at home for four weeks. Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?

You can ask the employees about any changed circumstances, explaining why they are now unable to work, but “you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.” The employees may be entitled to FFCRA leave now if, for example, they have made the decision to take paid sick leave or expanded family and medical leave to care for their children so that their spouse could work or telework.

92. My employee claims to have tiredness or other symptoms of COVID-19 and is taking leave to seek a medical diagnosis. What documentation may I require from the employee to document efforts to obtain a diagnosis? When can it be required?

You can require the employee to identify his or her symptoms and a date for a test or doctor’s appointment.

93. I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?

Not unless the child’s care provider is closed or unavailable for a COVID-19 related reason.

The Department of Labor Narrows The Independent Contractor Exemption Classification

A recent DOL Interpretation will probably entitle more workers to benefits and overtime compensation as employees. David Weil, the Administrator of the Wage and Hour Division of the U.S. Department of Labor (DOL) issued an Interpretation last week regarding the proper analysis to be used in determining whether a worker is an independent contractor or an employee. See Administrator’s Interpretation 2015-1:The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors. Continue reading “The Department of Labor Narrows The Independent Contractor Exemption Classification”