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Health-Care Exclusions Narrowed in Revised Virus Paid-Leave Rule

Sept. 11, 2020, 10:50 PM

A virus-relief law giving workers up to 12 weeks of paid leave will be expanded to cover more health-care employees under an updated Labor Department rule prompted by an August court opinion.

The agency released late Friday its second interpretation of the Families First Coronavirus Response Act, the stimulus measure Congress passed in March. The law required businesses with fewer than 500 workers to provide two weeks of paid sick leave to employees affected by the virus and up to 10 weeks of partially paid family leave for working parents to care for children whose school or day care is closed due to Covid-19.

The new rule revised DOL’s initial definition of health-care providers who are exempted from the law, in response to the federal judge deeming that definition overly broad. Now, the agency is excluding health-care workers who are physicians and others who make medical diagnoses, as well as those who “provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”

Another category of exempted health workers finalized Friday includes people providing services “integrated with and necessary to the provision of patient care.”

A federal judge in Manhattan last month invalidated language in DOL’s first rule implementing the law that had exempted all types of employees at any health-care facility, including those who don’t treat patients, such as cafeteria workers and janitors. Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York didn’t substitute his own definition of health-care workers who should be excluded from benefits, leaving DOL to fill the gap.

The initial rule took effect April 1 and expires Dec. 31. The updated version is scheduled to take effect Sept. 16.

Oetken also set aside parts of the rule that allowed employers to deny leave if they didn’t have work available; that required workers to get employer consent to take intermittent leave; and that mandated employees provide documentation before taking leave.

But on the first two of those three vacated provisions, the department’s rule Friday addressed the judge’s opinion by reaffirming its original positions with further explanation as to the legality of those requirements.

DOL also revised the documentation requirement, in accordance with Oetken’s ruling, to state that workers taking paid sick and family leave under the rule must provide documentation “as soon as practicable.” The initial regulation demanded documentation prior to taking leave.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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