Last month, a New York federal court (the “Court”) struck down parts of the U.S. Department of Labor’s (“DOL”) regulations (“Rule”) on the Families First Coronavirus Response Act (“FFCRA”).  In response, the DOL revised portions of its Rule on September 11, 2020.  The DOL stated in its updated FAQs (#102) that it considers the Court’s decision to apply nationwide, and therefore the revised Rule applies nationwide.  The revised Rule is effective as of September 16, 2020, and will expire when FFCRA expires on December 31, 2020.

The Court’s decision had invalidated: (1) the work-availability requirement; (2) the definition of “health care provider” for purposes of the exemption; (3) the requirement that employees obtain their employer’s consent to take intermittent leave; and (4) the requirement that employees provide supporting documentation before taking FFCRA leave.

The DOL revised its Rule as follows:

It remains unclear whether the New York State Attorney General will challenge the revised Rule, to the extent the DOL reinstated its rules on the work-availability requirement or intermittent leave.  Nevertheless, under the revised Rule employers (i) should allow employees to take FFCRA leave for the reasons provided by the law when they would otherwise be able to work or telework; (ii) should provide FFCRA leave to employees who are not themselves health care providers, even if the employer is a health care provider; (iii) may require employees to seek permission to take intermittent leave as defined by the revised l Rule; and (iv) should not require documentation for FFCRA leave requests prior to the employee taking FFCRA leave.

If you have any questions or concerns about the revised l Rule or FFCRA, you may contact Chaim Book at or Sheryl Galler at