The four provisions struck down include:

• • the definition of who qualifies for the healthcare provider exemption;
  • the exclusion from benefits of employees whose employers do not have work for them;
  • the requirement that employees secure consent for intermittent leave for certain qualifying reasons; and
  • the requirement that documentation be provided before taking leave.

The court let stand the remaining provisions of the DOL’s regulations.

The court’s decision leaves open a lot of questions for employers who are trying to comply with the law (and also demonstrates the inherent issues when congress and federal agencies try to rush something through).  Employers who have been following the regulations, may now find themselves at risk.   And the decision leaves employers left to surmise important questions such as what definition of healthcare provider should be used under the FFCRA, and whether employees on furlough or who otherwise do not have work available (regardless of whether the employee is unable to work due to a COVID issue) are eligible for pay.

The court’s decision creates new risks for employers trying to comply.  For public employers and employers with less than 500 employees, the rules have changed.  Contact your Jackson Lewis attorney for assistance in developing an approach that helps minimize the risk for your organization.

The other FFCRA regulations, except the four areas discussed above—the timing of documentation, consent for intermittent leave, work-availability requirement and definition of health care provider—remain in place, said Joseph Cartafalsa, an attorney with Ogletree Deakins in New York City, in an interview with SHRM. “Pending an appeal or additional rulemaking, employers are advised to follow the regulations in a manner consistent with the court decision.”

Employers will want to speak with their attorneys ASAP to determine the best course of action moving forward and possibly going backward.