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Court Decision May Impact How Employers Address FFCRA Leave of Employees with School Age Children

The start of a new school year is just weeks away in New York and both employers and employees are confused over the constant changes in the regulations pertaining to an employee’s right to take leave during the COVID-19 pandemic. For example, the relevant provision of paid leave under the Families First Coronavirus Response Act (“FFCRA”) allows employees to take time off if their child's school “has been closed … due to COVID-19 precautions.”

Different school districts are taking different approaches to classes during the pandemic, and some are giving parents the option of online or in-person classes. Some employees of school age children have opted for remote learning for their children and asked for time off. Employers should be aware that such employees are not owed leave under the current DOL guidance. If a parent makes the decision to have his or her child stay at home, despite the fact that school is open, the employee is not eligible for paid leave under FFCRA.

To add to the confusion, the United States District for the Southern District of New York recently issued a decision in State of New York v. U.S. Department of Labor, No. 1:20-cv-03020 (S.D.N.Y. Aug. 3, 2020) that struck down several aspects of the United State Department of Labor’s (“DOL”) regulations for paid leave under the FFCRA. The four provisions struck down by the District Court are the: (1) definition of who qualifies for the healthcare provider exemption; (2) exclusion from benefits of employees whose employers do not have work for them; (3) requirement that employees secure consent for intermittent leave for certain qualifying reasons; and (4) requirement that documentation be provided before taking leave. The last two provisions have the most impact right now on employers and parents of school-age children.

Intermittent Leave

New York State challenged two aspects of the DOL’s regulations that permit employees to take leave intermittently only if the employer and employee agree and only for certain qualifying conditions such as leave to care for the employee’s child whose school or place of care is closed, or if the childcare provider is unavailable, because of reasons related to COVID-19. The Court vacated the DOL’s regulations that required employer consent to take intermittent leave but left the qualifying reasons alone.

Documentation Requirements

New York also challenged the DOL’s regulations for requiring employees to provide his or her employer with documentation supporting the need for leave in advance of taking leave. The Court found that documentation requirements, to the extent they are a precondition to leave, cannot stand because they imposed a different and more stringent precondition that was inconsistent with the FFCRA’s clear notice provisions. Therefore, documentation is not a pre-requisite to take FFCRA leave.

Guidance for Employers of Employees with School Age Children

Employers outside of the Southern District of New York should carefully apply the FFCRA using the DOL’s current guidance since the Court’s decision only pertains to the Southern District, which includes Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester counties. However, the DOL has the ability to appeal the district court’s decision to the Second Circuit, which could reinstate the stricken provisions of the regulations after review. Currently, it is unknown as to how the DOL plans to proceed. We will continue to monitor developments in this case and provide an update once this information is made known.

Our Firm has extensive experience counseling employers and businesses on employee and labor law issues, and preparing applicable employee policies, particularly relating to the evolving regulations during the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19 reopening rules and procedures, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.


For more COVID-19 Legal Updates, please visit our resource page.

This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC


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