KingSpry | HR Law Update Developing Employee Rights Caselaw COVID

HR Law Update: Developing Case Law Regarding Employees’ Rights During COVID-19

Posted on August 26th, 2020
by Avery E. Smith

Many employers throughout the country have been looking for guidance on implementation of the Emergency Paid Sick Leave Act and the Emergency FMLA provisions of the Families First Coronavirus Response Act (FFCRA), including developing case law.

On August 3, 2020, a notable decision was entered in the U.S. District Court for the Southern District of New York.  While this decision doesn’t necessarily apply to Pennsylvania employers, it is noteworthy because it does give us some idea of how the implementation of FFCRA will unfold.

The FFCRA describes the different types of leaves employees are entitled to during the pandemic. On April 1, 2020, the Department of Labor (“DOL”) enacted its Final Rule, including The Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”). These provisions place obligations on employers and provide employees with rights regarding leave due to COVID-19.  

In response to the DOL’s Final Rule, on April 14, 2020, New York filed a lawsuit in federal court challenging certain parts of the Rule.  On August 3, 2020, The Honorable J. Paul Oetken struck down four within the EFMLEA and EPSLA, summarized as follows:

(1) The definition of “Health Care Provider” in deciding which employees can be excluded by their employer from receiving leaving under the FFCRA.  The FFCRA defines health care providers as anyone employed at a doctor’s office, hospital, medical school or a number of other facilities where medical services are provided. The Court found this definition to be overly expansive.

(2) The Work-Availability Requirement. The FFCRA currently allowed employees to take FFCRA leave only when their employers would otherwise have work available for them to perform.  By striking this requirement, the Court made eligible for FFCRA leave those employees who have been furloughed, placed on a reduced work schedule, temporarily laid off, or out of work due to the employer’s place of business closing.

(3) The requirement that employees secure consent from employers for the intermittent leave for certain qualifying reasons.  The FFCRA allows employees to take Paid Sick Leave or Expended Family and Medical Leave intermittently only if the Employer and Employee agree.  The Court struck the requirement that employers agree to intermittent leave.

(4) Documentation requirements for an employee’s leave. The FFCRA requires employees to submit to their employer, before taking a FFCRA leave, documentation regarding the reason for leave, the duration of the leave, and, in specific instances, authority for their quarantine order qualifying them for leave.  The Court struck the requirement that this documentation must be provided before going on leave.

So what does this mean for employers who have been following the FFCRA Final Rule for the last 5 months?

Many believe that this decision only applies to New York employers, since the decision was decided by a single judge in New York. The decision itself is silent as to scope, although New York is seeking an injunction and declaratory relief that the regulations be struck down.  The DOL may appeal the decision, and/or issue new regulations in response.  Further, Congress may amend the FFCRA and effectively reverse the decision.

For now, the question is unresolved.

If you have any questions, you may contact your own employment counsel, or you may contact me at As always, we will keep you updated!

HR Law Update is a publication of the KingSpry Employment Law Practice Group. HR Law Update is meant to be informational and does not constitute legal advice.