What are employers to do? Judge tosses parts of DOL regs covering FFCRA leave

On August 3, 2020, a New York district court judge struck down portions of the U.S. Department of Labor’s (DOL) final rule implementing the Families First Coronavirus Response Act (FFCRA). The case was filed by the state of New York under the Administrative Procedure Act, which governs the process by which federal agencies develop and issue regulations. Rejecting the DOL’s bid to dismiss the claims, the district court vacated (or tossed out) four separate provisions of the final rule on the grounds they exceeded the agency’s authority under the statute. How the decision will affect employers outside New York is uncertain. Let’s take a closer look.

District court’s decision

First, in a move that will greatly expand access to leave under the FFCRA, the court vacated the work availability requirements of the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). As a reminder, the EPSLA grants leave to employees who are “unable to work (or telework)” due to a need for leave because of six COVID-19-related criteria. The EFMLEA similarly grants leave to employees who are “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”