DOL Wins the Trophy Belt (for now) and Stands Firm on FFCRA Guidance (mostly)
For those following along at home, you are most certainly aware of the heavyweight battle going on between the Department of Labor (DOL) and the State of New York over the FFCRA regulations. If you need a visual, think of the nerd version of Tyson v. Holyfield – lots of words flying around but no one loses an ear. Lots of papercuts, but no black eyes. You get the picture. Here’s a quick recap of the titanic struggle to date:
- March – DOL issued regulations and guidance on FFCRA interpretation on March 30, 2020. (Yes. It was really less than six months ago. It just feels like six years.)
- April/May – DOL updated its guidance periodically. (This guidance typically came out on Friday nights so that HR professionals could spend their entire weekend reviewing the new rules. Thanks, DOL.)
- June/July – Some updates from the DOL, but the heavy action slowed down.
- August – NY judge slapped at the DOL and struck down certain provisions of the FFCRA regulations. Impacted topics were: intermittent leave, the health care provider exemption and the ability to receive FFCRA pay even when no work is available. This only impacted people within the court’s jurisdiction in NY.
Legal nerds (like me) sat on the edge of our seats with a gigantic bowl of popcorn frantically clicking “refresh” on our browsers to see what would happen next. So what happened? The DOL “carefully considered” the NY court’s critique of the regulations … and then essentially said “thanks, but no thanks.” The DOL offered a “further explanation” of its stances on the topics raised by the NY court, holding its ground in most areas. Specifically, the DOL determined:
- Availability of Work – FFCRA pay (Paid Sick Leave / Emergency FMLA) is only available if there is work available to the employee. If the employee would otherwise have gone unpaid for lack of work (e.g., furlough/layoff), he/she is not eligible for paid leave.
- Intermittent Leave – Must be approved by the employer.
- Health Care Providers – Narrowed the definition of “health care providers” who are exempt from the FFCRA’s paid leave provisions.
Employment lawyers across the country breathed a huge sigh of relief! The advice we had been giving on these topics is still correct. Whew! Unless you are a health care provider who relied upon the exemptions, there is no need for you to change your practices on these topics (assuming you were applying the rules correctly already). If you are a health care provider, give us a call and we can discuss the implications of these changes.
Round 3 goes to the DOL … now if they could just find someone strong enough to lift the trophy belt into the air for a picture!