In State of New York v Department of Labor et al., Judge J. Paul Oetken, a Federal Court judge in the Southern District of New York, set aside portions of the Department of Labor’s (DOL) regulations implementing the Families First Coronavirus Response Act (FFCRA). The provisions invalidated by this decision are noted below.
1. Work Availability
The decision invalidated the DOL’s “work-availability” requirement. The “work-availability” requirement excludes employees whose employers do not have available work from taking leave pursuant to certain qualifying events under the FFCRA.
2. Health Care Provider
The FFCRA allows health care providers to be excluded from leave under the FFCRA by their employers. In this context, the DOL has defined “health care provider” broadly to include all individuals employed by a health care facility. The Court struck down the DOL’s definition. The Court determined the DOL’s definition is too broad, noting that the FFCRA requires the employee be capable of furnishing healthcare services for the exemption to apply.
3. Intermittent Leave
The Court invalidated the DOL’s requirement that employees must obtain their employer’s consent to take intermittent leave. However, the Court upheld the DOL’s rule prohibiting intermittent leave for employees working at their worksite when the leave is taken because the employee has or may have COVID-19 or is caring for someone who has or may have COVID-19.
4. Documentation
Last, the Court set aside the DOL rule that requires that employees provide documentation in support of their leave prior to taking leave. The Court only took issue with the temporal aspect of the documentation requirements; it upheld the substantive requirements.
Employers should be aware of this decision and its implications when administering the provisions of the FFCRA.

A copy of the decision can be found here: https://www.nysd.uscourts.gov/sites/default/files/2020-08/State%20of%20New%20York%20v.%20United%20States%20Department%20of%20Labor%20et%20al%2C%2020-cv-3020%20%28JPO%29.pdf
The Attorneys at Levene Gouldin & Thompson, LLP are available to provide advice and counsel concerning matters related to COVID-19.