Federal Court Ruling on FFCRA

August 10, 2020

As we said on the call on Friday, we had received word from ANCOR that a Federal District Court in New York struck down the existing definition of “Health Care Provider” under FFCRA.  As you may recall, the issue is whether or not providers (under 500 employees) can be exempt from the FFCRA provisions which included both the federally subsidized Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act.  Employers who were considered “health care providers” could opt to deny one or both of the leave benefits to their employees.  [You can search for FFCRA in earlier Posts to refresh your memory!]

Here is a copy of the Court Order with highlights from McGuireWoods – look for the issue beginning on page 17.  As we understand it the options are:

  • DOL can appeal – however, it is not likely that the appeal will be resolved before FFCRA expires at the end of December 2020.
  • DOL could “redefine” health care provider to focus on the employee rather than the employer; there is the the possibility that the definition could still include those who provide direct care. 

It is perhaps reasonable to think that DOL will make the next move and, therefore, many employers are taking the “wait and see” approach pending DOL’s action.  Please consult with your attorney for legal advice, we will keep you posted of further developments.