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Abolishing family virus regulations works foolishly



Last week's ruling by a New York court judge overturning the provisions of the Families First Coronavirus Response Act leaves employers in New York and elsewhere questioning how to proceed.

While Judge J. Paul Oetken of the New York District Court of State of New York v. United States Department of Labor et al. clearly applies to employers within the geographical territory of the district, its applicability elsewhere, especially in other states, is unclear.

The decision, which some experts describe as poorly written and confusing, also raises questions about how the Ministry of Labor, which issued the final ordinance on which Judge Oetken's decision is based, will eventually respond.

The FFCRA, which entered into force on 2 April and will expire on 31

December, requires employers to provide paid workers with emergency family and medical leave and paid sick leave.

It covers private employers with less than 500 employees and some other employers. Employers are given a payroll tax credit for paid leave according to the law.

The decision states that the final regulation "exceeds (DOL's authority under the law" with regard to whether employees can be denied leave in certain circumstances if there is no work available.

Among other aspects of the final provision, Judge Oetken's decision states that its definition of health care providers, according to a provision that excludes health care providers from having to provide benefits, is too broad.

DOL said in a statement, "The Trump administration does not agree with the district court's decision and is considering all available options. The administration responded quickly to this pandemic and quickly issued rules to implement the family's first Coronavirus Response Act, which provided for new salary options and at the same time the need for caregivers to help the sick.

"The balanced strategy helped bring both relief and care to Americans in need, and these goals remain as we move forward to fight the virus.

No reply to the verdict had been submitted to the court by DOL as of Monday afternoon.

New York State Attorney General Letitia James said in a statement that the decision "is an important benefit for workers who put their health and their lives in line when COVID-19 collapses."

"It was an interesting opinion that Paul E. Starkman, a Clark Hill PLC law firm representing employers, said a lot of uncertainty.

Southern District jurisdiction includes Manhattan and the Bronx in New York City and Westchest er, Rockland , Putnam, Orange, Dutchess and Sullivan counties in the state of New York.

Employers point out that even if they are appealed to the 2nd U.S. District Court in New York, whose jurisdiction includes New York, Connecticut and Vermont, an appeals court is unlikely to to be able to respond in a timely manner, given the expiration date of the law on December 31, unless a quick decision is requested.

Other possible options include the DOL issuing new regulations, although this is likely to be a time-consuming process as well, experts said.

Charles Jellinek, a partner and co-manager, employment and labor, at Bryan Cave Leighton Paisner LLP in St. Louis, said unlike the case of Judge Oetken did not issue an injunction against the implementation of the rule, nor did it state that it was applied on a national basis.

Observers generally say that the decision will not have any significant impact outside the district court's jurisdiction. "There's a district court judge in New York, but there is nothing binding on courts outside the Southern District," said T. Christopher Bailey, an officer with Greensfelder Hemker & Gale P.C. and St. Louis, who represents employers. "It raises uncertainty," he added.

Tracy M. Billows, a partner with Chicago's Seyfarth Shaw LLP, representing employers, said, "I think what we will see is in New York, people will be very aware of the decision and change their policy for Beyond New York, I think the jury is still out. "

Susan K. Lessack, a partner with Troutman Pepper Hamilton Sanders LLP in Berwyn, Pennsylvania, who represents employers, said:" At least employers in the other circle should

Experts say that the decision may remain relevant if Congress decides to extend the law beyond its current expiration date in December.

Even if the law runs out according to the schedule without being extended by Congress, there may be other current trials around the country on this issue.

If a judge elsewhere "comes up with a different result, you have a conflict between the circles, and that would create a kind of appeal to the United States Supreme Court, "Lori Armstrong Halber, a partner with Reed Smith LLP in Philadelphia, said.


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