How a Court Ruling on FFCRA Impacts Household Employers

Aug 12, 2020 | COVID-19, Domestic Workers' Rights, Household Employee Management

A federal court in New York struck down four rules related to the paid leave requirements provided by the Families First Coronavirus Response Act. Here’s what the ruling means for household employers.

A federal court in New York recently struck down four federal Department of Labor rules related to the leaves provided by the Families First Coronavirus Response Act (FFCRA).

FFCRA provides paid leave for employees who meet certain criteria related to the COVID-19 pandemic. Employers can receive tax credits for any qualified paid leave provided to their workers.

As a result of the court’s decision, certain aspects of the FFCRA are now more favorable to employees. Unfortunately, it’s not clear if the ruling applies nationwide or only in the Southern District of New York, where the court is located.

Until there is further activity in the case — which may clarify whether the rules remain intact throughout the rest of the country — household employers may want to err on the side of caution when handling FFCRA leaves and assume these particular rules no longer apply.

What is clear is that these four rules definitely do not apply to the counties of Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester (i.e., the Southern District of New York).

Here are the rules that the court invalidated:

The requirement that work be available for an employee to use leave

DOL rule

The DOL said that for an employee to use Emergency Paid Sick Leave (EPSL) or Emergency Family Medical Leave (EFMLA, aka EFMLEA), the employer had to have work available for them during the time they needed leave. For instance, if an employee was furloughed while sick with COVID-19, they would not be eligible for EPSL.

Court ruling

The availability of work is irrelevant. If an employee is still employed, whether on the schedule or not, they should be allowed to use FFCRA leave for qualifying reasons.

The requirement that employers agree to intermittent leave

DOL rule

Employees must get approval from their employer to use intermittent leave to care for their children when their school or place of care is unavailable because of COVID-19.

Court ruling

If an employee needs intermittent leave (partial weeks or partial days off) to care for their child whose school or place of care is unavailable because of COVID-19, the employer must allow it.

The requirement that employees provide documentation before taking leave

DOL rule

Employers could require that employees provide certain documentation before being allowed to take FFCRA leave or before designating the leave as EPSL or EFMLA.

Court ruling

Employers can still require documentation (which is necessary to get their tax credit), but they can’t prevent an employee from starting leave until the documentation is received. The law clearly states that an employee must provide notice “as is practicable” when taking EFMLA and after the first workday of leave when taking EPSL.

The definition of health care provider, for the purpose of exemption from leave

DOL rule

The DOL defined health care providers very broadly, to include anyone who works for a healthcare entity and many who contract with one. (The rule was so broad that a custodian working at a drugstore or an English professor at a university with a medical school could be exempt.)

Court ruling

The definition is too broad. However, the court did not provide a new definition. Household employers may want to apply the exemption only to those workers capable of directly providing healthcare services.

GTM Payroll Services will be watching this case closely and will let you know if and when things change or become more clear. In the meantime, clients can call (800) 929-9213 if they have any questions about FFCRA.

Also, visit our COVID-19 Resources for Household Employers for additional guidance and information on FFCRA, unemployment benefits, and anything else related to the pandemic.