Podcast Episode 19

Episode details

A New York federal court recently struck down parts of the U.S. Department of Labor’s (DOL’s) rule interpreting employee paid sick and extended FMLA leave components of the Families First Coronavirus Response Act (FFCRA). Two national employment law experts, Jeff Nowak and Ellen McCann, discuss the court’s decision and its implications for the future of FFCRA leave – and employers. 

  • On April 1, 2020, when the scope of the pandemic first became apparent, Congress passed the FFCRA. DOL quickly issued regulations for implementing this new federal statute. (01:23)
  • The State of New York filed suit against DOL, claiming the agency’s regulations 1) unlawfully denied FFCRA leave to otherwise eligible employees and 2) exceeded the DOL’s authority. As a result of the proceedings, the New York federal court invalidated several DOL regulations interpreting the new federal law:
    • The requirement that employees be scheduled to work in order to take a leave of absence. (02:52)
    • The part of the intermittent leave provision requiring the employer’s permission when an employee is caring for a child due to public health concerns, such as COVID-19-related closures of schools or unavailable childcare. (07:30)
    • DOL’s expansive definition of healthcare provider and leave entitlement exemptions. (09:44)
    • The timing of when employees must submit leave documentation to their employers. (15:20)
  • The scope of the court’s decisions remains uncertain, but one thing remains clear: DOL must address the court’s decision. That means employers should continue to monitor the situation and look for DOL updates. (17:07)
  • Employers can also reduce compliance risks by examining their leave exemptions, application of intermittent leave, stances on work availability, and current leave administration and documentation. (18:39)
  • Additional resources: Check out Jeff Nowak on the highly regarded FMLA Insights blog for information on changes to FMLA notices and regulations. You can also take an in-depth look at the New York federal court’s decision on the DOL rule regarding paid sick and expanded FMLA leave under FFCRA.
  • Watch our webinar with four national experts discussing leave-management in a post-pandemic world.

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Jeff Nowak headshot

Jeff Nowak

Shareholder, Littler Mendelson

Jeff Nowak is a shareholder for Littler Mendelson, P.C., the world’s largest employment practice representing employers. He is a recognized leader on FMLA and ADA issues, helping employers develop comprehensive strategies to achieve compliance with employee leave and accommodation issues. He is also the author of the highly regarded FMLA Insights blog, which has earned him entry into the ABA Journal’s Blogger Hall of Fame. Nowak is a highly sought-after speaker on FMLA/ADA issues, most notably serving on the faculty of the National Employment Law Institute (NELI) and a frequent speaker for the Disability Management Employer Coalition (DMEC).

Ellen McCann headshot

Ellen McCann

Assistant Vice President, Leave Solutions — Unum Group

Ellen McCann serves as a leading expert in applying benefits and benefits technology to power modern solutions to more effective employee leave programs, stronger regulatory compliance and enhanced digital HR transformation. In this role, she combines more than 30 years of employment law experience with practical knowledge of the complexities of leave and accommodation management to help develop and create solutions that enable employers to address the challenges of leave and accommodations. She is an acclaimed national speaker on leave management issues including FMLA and ADA, and is a certified trainer for SHRM and CE credit.

About the host

Clare Morin headshot

Clare Morin

Unum Content Marketing Manager

Clare Morin is the Content Marketing Manager at Unum and a journalist who’s spent the last 20 years interviewing hundreds of thought leaders on topics ranging from wellness to culture, finance, human resources and technology. Born in the UK, raised in Hong Kong and based in the U.S. since 2009, she brings a global outlook to the HR Trends studio.

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