The New York District Court for the Southern District of New York has ruled that four separate provisions of the Families First Coronavirus Response Act (FFCRA) are invalid and unenforceable. 

1. Work Availability Requirement: in order to be eligible for leave under the FFCRA, the employee must be unable to work or telework. However, this definition excludes employees for whom no work is available. For example, a restaurant that has shut down its in-house dining, no leave need be granted to servers because there is no work for them anyway. Confusingly, this requirement did not apply to all FFCRA-qualifying leave reasons, only some. The Court deemed this requirement (that work is available for the employee as a precondition for leave) to be an unreasonable interpretation of the Final Rule. 

2. Definition of “Health Care Provider”- The Court stated that the FFCRA’s definition of a “health care provider” was too expansive and encompassed professions such as librarians, professors, and others only tangentially related to the provision of health care services. The definition needs to be narrowed to only include those directly related to the provision of health care services, and its overbreadth makes it currently unenforceable. 

3. Constraints on Intermittent Leave- Currently, FFCRA intermittent leave is only allowed when the employer and the employee agree AND there is minimal risk of spreading COVID-19 to other employees. The Court could not understand why consent was required for some FFCRA-qualifying reasons but not for other FFCRA-qualifying reasons. As such, intermittent leave requirements, insofar as they apply to consent of the employer, is unenforceable. 

4. Documentation Requirements- The Court rendered unenforceable a blanket requirement that employees provide leave to an employer before taking leave. However, documentation requirements are enforceable during leave. 

This ruling is not yet law and will likely be appealed by the Department of Labor. However, this ruling has potentially major impacts on the use of FFCRA leave in the workplace. If this ruling stands, new guidance will be issued to reflect the changes and employers and employees will have to re-familiarize themselves with the FFCRA. However, the remainder of the FFCRA is untouched and will continue to function as normal. FNA Insurance Services will keep you informed of any updates in the law. 

At the moment,  employers and employees should continue to follow the FFCRA as written. You can read the entire decision HERE. 

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