Employers looking to comply with the Families First Coronavirus Response Act (FFCRA) have had a wild ride during the past several weeks. First, a federal judge in New York invalidated several parts of the U.S. Department of Labor's (USDOL) regulations related to the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, which are critical components of the FFCRA. Then, with what passes in a bureaucracy for blinding speed, USDOL drafted and issued new emergency regulations designed to address the issues raised by the court. With only a little more than three months left for these two programs, employers can hope that these new rules will be the final word.
In August, the court struck down (1) the provision that created a paid leave entitlement under certain circumstances for employees only if their employers had work available for them to do; (2) the expansive definition of an excludable "health care provider;" (3) the ability of an employer to withhold consent for intermittent leave; and (4) the requirement of advance documentation of the need for leave.
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