New York Sues Department of Labor Challenging FFCRA Regulations
April 15, 2020
By: Colin A. Walker
On April 14, 2020, the State of New York sued the U.S. Department of Labor arguing that its recently issued regulations pursuant to the Families First Coronavirus Response ACT (“FFCRA”) are contrary to law and asking the court to invalidate certain provisions of the regulations.
The complaint, filed by the New York Attorney General in the United States District Court for the Southern District of New York, argues that the regulations limit the benefits provided by the FFCRA in several ways which are contrary to, or not authorized by, the FFRCA and the intent of Congress:
- The regulations do not allow workers to take emergency paid sick leave or expanded FMLA leave if the employer does not have enough work for the employee.
- The definition of health care provider, is broader than the definition in the FFCRA and the plain meaning of the term. Since health care providers may be excluded from FFRCA leave, this broad definition excludes many workers, who have not previously been considered health care providers, from leave under the FFRCA. The complaint points out that the regulations’ definition includes any employee—even secretaries and cashiers—who works at a doctor’s office, hospital, or healthcare center.
- Intermittent leave, which may be taken in increments of less than one day, is significantly and inappropriately limited. Employees who are reporting to a worksite may take intermittent leave only under certain circumstances. Teleworking employees may only take FFRCA leave intermittently if the employer agrees. The complaint points out that nothing in the FFRCA supports limiting intermittent leave in this way. Furthermore, under the FMLA, which the expanded FMLA leave provisions of the FFRCA amends, it is clear that leave may be taken intermittently.
- The employee’s requirements of providing certain documentation (such as the dates leave it needed, the reason for the leave, the name of the doctor of governmental agency that issued a quarantine or isolation order, and the name of a child care provider that is unavailable) are more extensive than authorized by the FFRCA.
The complaint argues that, because these provisions of the regulations are contrary to the FFCRA or not authorized by the FFRCA, they violate the Administrative Procedure Act.
New York argues it will be harmed because enforcement of the overbroad regulations will increase the incidents of Coronavirus in the state, increase its healthcare costs, and decrease its tax revenue. It asks the court to vacate the challenged regulations and set them aside.