NEW MEXICO’S BUSINESS LAWYERS ®

District Court Voids Portions of FFCRA Implementation

August 17, 2020

A New York Federal District Court has struck down some provisions of the Department of Labor’s (“DOL”) Rule (29 CFR Part 826 et seq) (the “Rule”) implementing the Families First Coronavirus Response Act (“FFCRA”), including the work availability requirement, the intermittent leave provision, the documentation requirement, among other aspects of the law. We do not know whether a New Mexico court would follow the New York decision or what actions the DOL will take in response to the decision, thereby creating uncertainty as to whether the decision affects New Mexico employers. Employers should remain in contact with their Sutin lawyers to monitor DOL’s actions following this ruling.

Work Availability Requirement

Under the Rule, employees were prohibited from taking leave under the Emergency Paid Sick Leave Act (“EPSLA”) and/or Emergency Family and Medical Leave Expansion Act (“EFMLEA”) if the employer did not have work for the employee. The Court struck this provision, thereby opening the door for any employee, even if furloughed, to request, and take leave under the EPSLA and/or EFMLEA.

Intermittent Leave Provision

Under the DOL Rule, intermittent leave under the EPSLA and/or EFMLEA was restricted only to situations where the employee and employer agreed to intermittent leave, and only for leave to care for a child whose school or place of care is closed, or where child care is unavailable. If the employee were taking leave due to symptoms or other reason regarding possible contagion, the employee could not take intermittent leave if the employee had to be on premises. Where an employee was teleworking, however, the employee could take intermittent leave so long as the employer agreed. The Court partially struck this provision and stated that employees may take intermittent leave, but the employer does not have to agree. In other words, all employees (where there is no risk of COVID transmission), whether teleworking or working on premises, may take intermittent leave whether or not the employer agrees.

Documentation Requirement

The Rule required employees to provide certain documentation/information prior to taking leave under the EPSLA and/or EFMLEA. The Court did not strike the requirements, except where the documentation/information was required as a precondition to take leave. The Court’s ruling leaves open many questions but because the documentation/information requirement was not completely struck, it is our initial analysis that it is appropriate for an employer to continue using the Rule as guidance for EPSLA leave purposes, but not to require this documentation/information prior to an employee’s leave.

As specified in the FFCRA, to take leave under the EFMLEA, an employee must provide notice of the need to take leave “as is practicable,” and only when it is foreseeable. To take leave under the EPSLA, the FFCRA states that “After the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.”

Thus, employers can rely on the documentation/information provision of the Rule when an employee requests leave under the EPSLA but only after the first day of leave.

For EFMLEA leave, the employer may not be able to request any documentation/information given that the FFCRA puts the burden on the employee, and only “as is practicable” and foreseeable.

Given these changes, if your Sutin lawyer has previously provided a form for leave purposes, it can no longer be used. Sutin has revised the form to conform to the Court’s ruling—remember, this form can only be given to the employee after the first day of leave under the EPLSA, not before, and not as precondition to take leave.

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