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  • Rybicki & Associates P.C.

Judge Requires FFCRA Leave When No Work Available, Voids Broad Healthcare Industry Exception

A judge in the United States Southern District of New York, the federal court in New York City, has issued an order invalidating important parts of the United States Department of Labor (“DOL”) regulations implementing leave under the Families First Coronavirus Response Act.

Most important, the court struck down the “work availability” rule – which confirmed that employees could not take leave when an employer has no work for them – and the regulations’ broad definition of “healthcare provider,” which excludes most employees in the healthcare industry from taking leave. The court’s ruling can be viewed here.

The court first considered whether one of the most important aspects of the law – whether workers must receive leave even when an employer does not have work for them – was treated improperly by the DOL. In a roundabout analysis, the court found that the text of the regulation seems to apply the “work availability” requirement only to three of six qualifying reasons for leave (although the DOL argued it was meant to apply to all reasons for leave, consistent with its opinion throughout guidance materials). It then found that the language of the law itself did not necessarily require that work be available for employees in order for them to take leave. Based on this drafting mistake and its interpretation of the law, the court held that the DOL could not exclude workers for whom an employer has no work from taking paid leave under the law.

The court also considered the regulations’ broad definition of “healthcare provider,” which covers entire workplaces within the healthcare industry. Noting that the definition of health provider under the FMLA typically applies to clinicians, not to the people who work with them (such as administrative employees), the court invalidated the definition as overly broad. It is not clear from the decision what definition would apply following the court’s decision, though it probably would be the Family Medical Leave Act’s general description of “healthcare provider,” which only includes certain professionals such as physicians and psychiatrists (and not other clinical workers such as most nurses and other hospital workers).

Finally, the court invalidated rules requiring employer consent for intermittent leave and advance documentation of the need for leave – items that have not affected employers much, as few employers would deny leave when an employee seems to need it under the new law.

The court’s first conclusion is a bombshell, apparently requiring employers to provide paid leave even when they have laid employees off for lack of work or shut down operations due to a slowdown or local order. The decision could also seriously affect healthcare employers, who have prepared for the continuing pandemic (and the current surge) while relying for months on the Department regulations.

The Department of Labor will certainly appeal and request a stay of the trial court order, which should keep the decision from affecting leave throughout the country – at least immediately. But employers should keep a close eye on developments, and the Department’s coronavirus website (, as the pandemic continues.


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