Court Upholds Documentation Requirement and Limits on Intermittent Leave

In a case brought by the New York attorney general, the U.S. District Court for the Southern District of New York has vacated portions of regulations issued by the U.S. Department of Labor (DOL) under the Families First Coronavirus Response Act (FFCRA). It is not yet known whether the DOL will appeal the decision, whether other states will bring similar court actions, or, if they do, whether courts in other jurisdictions will reach the same result as the New York judge. Employers are advised to stay updated on developments in these areas to ensure their FFCRA leave policies comply with the law.

The opinion struck down the following regulations pertaining to the FFCRA’s employee leave provisions:

• The requirement that an employer have work available for an employee taking leave;
• The definition of health care providers who may be denied leave by their employers;
• The requirement that employers consent to intermittent leave; and
• The requirement that employees provide documentation for leave before taking leave.

The judge let stand the regulations’ ban on intermittent leave for certain qualifying reasons and the substance of the documentation requirement, separate from its timing.

The opinion noted that the work availability requirement could “considerably narrow the statute’s potential scope” due to the decrease in work immediately available for employees who otherwise remain formally employed, as a result of the COVID-19 emergency.