GRB Law Update

Talking Points: The Families First Coronavirus Response Act (FFCRA)

By: Jaime N. Doherty
Date: November 12, 2020

Author Spotlight

headshot of Jaime Doherty, author of article on the FFCRA challenge Jaime leads the firm's Litigation and Labor & Employment Groups. Her practice focuses on commercial and construction litigation, defense of product liability and toxic tort claims, insurance defense and coverage analysis. About Jaime

• Applies to private sector employers with fewer than 500 employees and to certain public sector employers. 

• Effective Period: April 1, 2020 — December 31, 2020

• Employee must be unable to work, including telework, because of one of the approved COVID-19 related reasons.

• Employers may not discharge, discipline, or otherwise discriminate against any employee who lawfully takes the expanded leave provided hereunder, files a Complaint or other proceeding under or related to the FFCRA.

• Violators are subject to penalties and enforcement by the Wage and Hour Division. US Department of Labor

• Small Business Excpetion available for employers with less than 50 employees where granting leave would cause: 1) business expenses/financial obligations to exceed available business revenuws; 2) substantial risk to financial health or operational capabilities becuase of specialized skills, knowledge or responsibilities of requestor; or 3) lack of able, willing and qualified workers, at the time and place needed to perform requestor's work

• Vacated portions of the US DOL's final rule implementing the FFCRA related to:
1) whether an employee is entitled to leave under the FFCRA if the employer has no work for employee where employee meets one of the 6 bases under the FFCRA for the leave (previously, no; now, yes);
2) definition of healthcar provider: exempted from coverage under the Act — now exempts healthcare professionals, not all employees of healthcare organization;
3) intermittent leave previously not allowed — not allowed for reasons that do not pose a risk to infection spread; and
4) documentation requirements — documentation required of employee's need for leave goes "far beyond" the statute

• US DOL is within the appeal period. It could appeal the ruling, seek a stay, withdraw its final rule that was the subject of the lawsuit, or create new rules or interim guidance.

• Expect challenges in other states, inlcuding in PA. 

* Recent case in the Southern District of New York, NY v. DOL, SDNY No. 20-03020, reported August 6, 2020 has binding effect in the Southern District of NY and is of persuasive authority in the Second Circuit Court of Appeals.

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