Judge strikes down parts of DOL's emergency paid leave regs


Dive Brief:

  • Several features of the U.S. Department of Labor (DOL)'s regulations implementing the paid-leave provisions of the Families First Coronavirus Response Act (FFCRA) exceeded the agency's authority under federal law, a federal judge has ruled (State of New York v. U.S. Department of Labor, et al., No. 20-CV-3020 (S.D.N.Y. Aug. 3, 2020)).
  • Among the struck-down DOL regulations are: the final rule's work-availability requirement; its definition of "health care provider" for the purposes of excluding certain healthcare sector employees from emergency leave benefits; its requirement that an employee secure employer consent for intermittent FFCRA leave; and its requirement that documentation be provided by an employee before taking FFCRA leave.
  • The federal judge permitted the outright ban on intermittent leave for certain qualifying reasons — specifically, intermittent leave based on qualifying conditions that correspond with an increased risk of infection — as well as the substance of the final rule's documentation requirement to stand. The court, the judge said, "sees no reason that the remainder of the Rule cannot operate as promulgated in the absence of the invalid provisions."
Dive Insight:

The ruling is an important one for the nation's first-ever federal paid leave law for private-sector workers. New York originally filed the suit in April following the release of DOL's FFCRA implementation guidance earlier in the month. Shortly before the lawsuit's filing, Congressional Democrats criticized DOL's final rule in a letter to Secretary of Labor Eugene Scalia that said the agency's guidance either deviated from the FFCRA's statute or did not have a basis in it.

Asked about the letter, a DOL spokesperson told HR Dive in April that the agency took "quick action to implement paid sick leave and expanded paid family and medical leave provides necessary support for America's workforce in uncertain times."

The federal judge said in the ruling that DOL faced "considerable pressure" in promulgating its final rule. "This extraordinary crisis has required public and private entities alike to act decisively and swiftly in the face of massive uncertainty, and often with grave consequence," the judge noted. "But as much as this moment calls for flexibility and ingenuity, it also calls for renewed attention to the guardrails of our government. Here, DOL jumped the rail."

Management-side attorneys expect the ruling to be appealed, Bloomberg Law reported. The decision applies nationally, creates uncertainty for employers who experienced pandemic-related shutdowns or reductions in force and requires healthcare employers to "re-examine whether they must provide paid leave" to certain employees, Sami Assad, partner at FordHarrison LLP and chair of the firm's Home Healthcare Practice Group, wrote in an article.

The FFCRA applies to U.S. employers with fewer than 500 employees, but those with fewer than 50 employees may be exempt from two of the law's paid-leave requirements. An authorized officer of the business must use a three-prong test to determine whether the employer may claim an exemption. Also, the IRS has published guidance detailing how small businesses can receive 100% reimbursement for paid leave pursuant to the FFCRA.

SOURCE: Golden, R. (04 August 2020) "Judge strikes down parts of DOL's emergency paid leave regs" (Web Blog Post). Retrieved from https://www.hrdive.com/news/new-york-judge-strikes-down-dol-emergency-paid-leave-reg/582856/


Putting Humanity into HR Compliance: Stop Tolerating Toxicity

HR departments who have a detox mission and address toxic workplace relationships can prove incredibly valuable to their organizations. Not only are employees and their well-being impacted by toxic workplace relationships, but also the organizational success and the well-being of employees' family members. Continue reading this blog post to learn more.


In my prior career as an employment attorney and in my current one as an organizational consultant and coach, I have encountered numerous toxic workplace relationships. The cost of these relationships—to organizational success, employee well-being and the well-being of employees' family members—is astronomical.

And the greatest tragedy is this: Almost all of this loss, pain and suffering is preventable.

Why are toxic workplace relationships so common? And why are they tolerated?

The answer to the first question is that good people make bad decisions. Typically, employee relationships start out fine. Employees cooperate and collaborate in their relationships with their bosses and peers.

But then something goes awry. A trust gap opens. The employee does not address the problem promptly, directly and constructively, but the employees' avoidance instinct kicks in. Nothing constructive is done to close the trust gap. As a result, the problem festers and grows. Eventually, any remaining trust evaporates, and the relationship degenerates into aggression, passive aggression or both.

Note that I'm not talking about the incorrigible "work jerk," whose behavior should never be tolerated. Rather, I'm talking about people stuck in toxic work relationships producing jerkish and other negative behavior.

Managers and HR practitioners succumb to the avoidance instinct, too. Although aware of the toxicity, they don't intervene and are wary of wading into others' dysfunctional relationships.

What are the costs of tolerating toxicity?

  • Personal suffering. The immediate parties may think they have nothing in common, but they do: They're equally disengaged and miserable.
  • Work loss. Toxic relationships do nothing to improve the quantity or quality of work, customer service or on-the-job innovation. There is increased absenteeism and what Colleen McManus, SHRM-SCP, an HR executive with the state of Arizona, calls "presenteeism," in which people are at work but not focused on work, dwelling on negativity instead of doing their jobs properly.
  • Secondhand anxiety. Co-workers who witness the toxic behavior suffer, as does their contribution to the organization. They are the truly innocent victims.
  • Collateral damage. Employees affected by workplace toxicity typically bring their stress home. This doesn't reduce their stress; rather, it elevates their loved ones' stress. "So true! In the most serious situations," McManus said, "I have seen greater instances of alcoholism and domestic violence due to problems at work."

How HR Can Help

HR departments with a detox mission can prove incredibly valuable to their organizations and the people in them. It's not hard to identify toxic relationships. The challenge is taking action.

I can say with confidence that intervention is always better than tolerating toxicity. You'd be surprised how easily many toxic relationships can be reset when a skilled third party steps in. HR professionals are ideally positioned to help employees stuck in toxic relationships get back on track. Or, if there's too much baggage, HR professionals can facilitate a respectful relocation of the parties to different positions in the organization. This method is a good way to start.

Many times, a toxic relationship is rooted in an unwitting and unaddressed offense one employee gave the other. As a result, the offended party started behaving differently toward the offender, which produced more offensive behavior, and so on. "I'm always surprised," McManus said, "when I ask the parties to the conflict what a resolution looks like. Often, it's simply an opportunity to be heard."

She adds that a sincere apology goes a long way toward rebuilding trust. "They feel validated, which is important to them."

Sometimes there's a structural misfit in the workers' roles that needs to be clarified, or how the jobs interact needs to be modified. HR can help figure out how the jobs can function without recurrent friction. "This is our profession's bread and butter!" McManus said.

There may be a personality conflict, in which case the parties need better understanding of how to interact with people whose styles differ from theirs. If that can't be achieved, though, there can be an agreement to disagree and respectfully move on—whether to a different position inside or outside the organization.

An HR team that makes a commitment to identify and resolve toxic relationships is empowered by the CEO, and is supported by the leadership team will prove to be incredibly valuable to its organization and the people in it. HR team members can directly coach others to resolve conflicts and show managers how to coach their employees who are stuck in toxic relationships.

There's also a risk management, compliance and claim-prevention component. In my employment lawyer days, most of my billable hours arose from conflict caused by toxic workplace relationships. An HR profession with a detox mission will become painfully costly to my former profession.

SOURCE: Janove, J. (Sept 06, 2019) "Putting Humanity into HR Compliance: Stop Tolerating Toxicity" (Web Blog Post) Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/putting-humanity-into-hr-compliance-stop-tolerating-toxicity-.aspx