September 20, 2020

Volume X, Number 264

September 18, 2020

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Court Vacates Parts of FFCRA Regulations, Including Healthcare Provider Definition

The federal district court in New York struck down four provisions in the Department of Labor’s (DOL) Families First Coronavirus Response Act (FFCRA) regulations on August 3, 2020, four months after the regulations went into effect, and five months before the FFCRA is set to expire.

Shortly after the DOL issued its FFCRA regulations, the state of New York filed a lawsuit challenging some of the provisions.

The four provisions struck down include:

  • The definition of who qualifies for the healthcare provider exemption;

  • The exclusion from benefits of employees whose employers do not have work for them;

  • The requirement that employees secure consent for intermittent leave for certain qualifying reasons; and

  • The requirement that documentation be provided before taking leave.

The court let stand the remaining provisions of the DOL’s regulations.

The court’s decision leaves open many questions for employers who are trying to comply with the law. (It also demonstrates the inherent issues when Congress and federal agencies try to rush through legislation and regulations.) Employers who have been following the regulations may find themselves at risk. The decision leaves employers to surmise the answers to important questions, such as what definition of healthcare provider should be used under the FFCRA, and whether employees on furlough or who otherwise do not have work available (regardless of whether the employee is unable to work due to a COVID-19 issue) are eligible for pay.

For public employers and employers with fewer than 500 employees, the rules have changed. The implications of the court’s ruling are complicated.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 216


About this Author

Francis P. Alvarez, Jackson Lewis, Health Care Management Attorney, Injured Workers Lawyer

Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees.

Counseling hundreds of employers each year, Mr. Alvarez spearheads the firm’s effort to provide imaginative and creative solutions to the complex array of workplace disability and health management issues...

Patricia Anderson Pryor, Class Action, Litigator
Principal and Office Litigation Manager

Patricia Anderson Pryor is a Shareholder in the Cincinnati, Ohio office of Jackson Lewis P.C. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented employers before the EEOC, the DOL, the DOJ, the OFCCP, and the NLRB, in addition to various state agencies. Ms. Pryor also works with employers to avoid litigation by developing effective policies and practices, including harassment policies, social media policies, FMLA practices, attendance programs, affirmative action programs and wellness plans. She conducts proactive wage and hour audits, harassment investigations and compensation reviews