New York judge strikes three portions of DOL regulations re FFCRA leave

A New York federal trial court has struck three portions of the DOL regulations implementing the FFCRA’s emergency paid sick leave. The State of New York challenged and the trial court struck these three portions of the DOL regulations:

  1. A requirement that emergency paid sick leave is available only if the employer has work available;
  2. An exclusion for employees working for a health care provider (note: this portion of the order is particularly unclear as it may have only struck the DOL’s definition of a “health care provider” without providing an explanation of how that phrase should be interpreted);
  3. A requirement that intermittent emergency paid sick leave be made available only with the employer’s consent (again this portion of the order is also unclear, in that the court clearly struck the requirement for employer consent, but apparently did not require intermittent leave be provided if the employer does not have work to provide).

The ruling is far from clear. Its impact is even less clear. It is not clear if the ruling has any impact outside of New York. New York did not request and the judge did not issue a nationwide injunction; therefore, technically the ruling has no impact outside New York. Nor is it clear if the DOL will challenge the ruling, including by appeal. It is not clear if judges outside New York (or appellate judges if this ruling is appealed) will find the trial court’s order persuasive.

Employers are reminded that a growing number of state and local jurisdictions are adopting their own requirements along these lines. Colorado employers in particular are reminded they must comply not only with the federal FFCRA’s requirements along these lines but also the new state law requirements.

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