New York Challenges Regulations Related to Federal Coronavirus-Based Leave

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On March 18, 2020, Congress enacted the Families First Coronavirus Response Act (FFCRA), providing certain workers up to ten paid sick days and up to twelve weeks of emergency family leave in response to the coronavirus pandemic.

On April 1, 2020, the Department of Labor (DOL) issued a final rule implementing the FFCRA. In a lawsuit, New York challenges four aspects of the final rule.

Local governments must comply with the FFCRA and its regulations unless a court strikes them down.

New York objects to the final rule because it makes fewer people eligible for leave than New York believes Congress intended. More technically, New York claims that the final rule “conflicts with the plain language and purpose of the statute Congress enacted by, among other things, (1) codifying broad, unauthorized exclusions from employee eligibility that risk swallowing Congress’s intended protections; and (2) creating from whole cloth new restrictions and burdens on employees that appear nowhere in the text Congress enacted.”

New York’s four objections to the new rule are as follows:

  • The final rule includes a “work availability” requirement that permits employers to deny workers emergency family leave or paid sick leave, where the employer determines it has no work for the employee. According to New York, adding this condition has no basis in the statute.
  • The FFCRA allows “health care providers” to exclude employees from leave benefits. “Health care provider” is supposed to have the same meaning in the FFCRA as the Family Medical Leave Act (FMLA). According to New York, despite this “express direction” from Congress, the final rule adopts a “far broader definition” of “health care provider” when determining which employees may be excluded from the paid leave provisions of the FFCRA.
  • The final rule limits intermittent leave; absent the employer’s agreement, all paid leave must be taken in “one continuous period.” According to New York, “[n]othing in the FFCRA authorizes [DOL] to grant employers the ability to deny paid leave to an employee who is otherwise entitled solely because the employer prefers that the leave be taken in one continuous period.”
  • New York claims that the regulatory obligation on employees to provide their employer with “extensive documentation supporting the need for paid leave” has no statutory basis.

New York claims that by “limiting the availability of paid sick leave, the Rule likely will cause more people to become infected with coronavirus, and thus cause New York to experience more uncompensated care costs.” New York notes that one million of its residents lack health insurance and that the final rule is likely to increase claims for unemployment. Finally, New York points out that less paid leave will cost the federal government income tax revenue and New York income and sales tax revenue.

The DOL hasn’t yet had a chance to respond to this lawsuit.

lisa_soronen_new_125x150About the author: Lisa Soronen is the executive director of the State and Local Legal Center, which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.