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On-and-Off Leave for Working Parents in Limbo as Schools Restart

Aug. 18, 2020, 9:46 AM

Working parents face uncertainty about their right to use federally guaranteed paid leave at their discretion, thanks to a recent court ruling that muddled the issue as a new school year begins and Covid-19 infections persist.

A Manhattan federal judge earlier this month struck down a requirement that workers must get their employers’ consent to take intermittent leave under a coronavirus relief law passed in March to care for a child whose school or day care was shuttered. That cleared the way for workers to get time off periodically or in half-day chunks as needed to care for their children, regardless of what their employers say.

But the decision doesn’t make clear whether it applies nationally, within New York, or just the jurisdiction of the Southern District of New York, which covers Manhattan, the Bronx, Westchester, and three other counties, employment attorneys said. The U.S. Labor Department could appeal the ruling and ask the reviewing court to temporarily suspend the ruling—thus reinstating the employer-permission mandate. Or the department might try issuing a new rule on paid leave.

Those open questions create murky legal terrain for employers administering intermittent paid leave requests and workers making them. Federal paid leave is one of working parents’ few options for juggling the demands of work and looking after children attending school remotely.

With employees returning to work, there will likely be a surge in requests for paid leave in the fall, said Jeff Nowak, a Littler Mendelson attorney who counsels employers on leave issues. Many parents will continue to face the double duty of employee and home-school teacher, he said.

“This isn’t going to go away,” Nowak said.

A Labor Department spokesman didn’t respond to requests for comment.

Cobbling Together Child Care

Intermittent leave is “hugely important” for working parents trying cobble together ways to take care of their children and hold onto their jobs, said Wendy Chun-Hoon, executive director of Family Values @ Work, which advocates for broader access to paid leave.

The freedom to choose when to take leave without needing management’s permission is especially important for low-wage workers who have little autonomy over their schedules, Chun-Hoon said.

About a quarter of Americans who work in either the private sector or state or local government lack access to paid sick leave, the Pew Research Center said in a March report.

The Families First Coronavirus Response Act and DOL regulations require employers with fewer than 500 workers to provide two weeks of paid sick leave to employees unable to work due to the virus. Those companies also must offer up to 10 weeks of partially paid leave under expanded Family and Medical Leave Act coverage to care for children. Paid leave is available under the law until Dec. 31.

Questions About Scope

Prior federal regulations have been submarined by a single judge’s ruling. A judge in Texas, for example, blocked the Obama administration’s plan to raise the salary threshold to qualify for overtime pay across the U.S.

But unlike that Texas judge, District Judge Paul Oetken didn’t expressly state the scope of his order partially siding with New York’s objections to the Labor Department’s leave regulation. The New York attorney general’s office didn’t specifically seek a remedy under the federal Administrative Procedure Act that would result in a nationwide order.

Some advocates view the ruling’s elimination of the employer consent requirement for intermittent paid leave to apply across the country. Molly Weston Williamson, director of the paid leave initiative at A Better Balance, said that mandate was struck down nationally.

But several management-side employment attorneys told Bloomberg Law the scope isn’t so clear.

“That’s the million-dollar question,” said Burton Garland, a lawyer at Ogletree, Deakins, Nash, Smoak & Stewart. “Everybody is hedging their bets.”

Risk Tolerance

To the extent employers can let workers take sporadic leave without requiring their authorization, they should do so, Garland said. Still, for companies that are outside of New York and can’t accommodate workers taking periodic leave without their permission, those companies can continue to require it until there’s better guidance on the ruling, he said.

Labor Department guidance will give needed clarity on federal enforcement of the leave requirements, but it won’t help when it comes to potentially being sued by private parties, said Susan Harthill, a Morgan Lewis & Bockius lawyer and former deputy solicitor at DOL.

“With an area of ambiguity like this, it often comes down to risk tolerance,” said Jonathan Segal, a partner in the labor and employment group at Duane Morris.

One key consideration for companies may be the potential exposure to class liability if they punish a worker for taking leave without prior permission, Segal said. Although that move would affect only one worker, it could represent the type of common workplace policy that could support a class action, he said.

Program Set to Expire

For working parents, the lack of clarity over the scope of the New York ruling and whether the Labor Department will appeal it is the latest example of uncertainty surrounding rights under the paid leave law, said Laura Narefsky, a fellow at the National Women’s Law Center.

The Legal Network for Gender Equity began helping workers determine their eligibility for federal paid leave this summer in light of the ambiguities in the law and the Labor Department’s failure to inform workers, Narefsky said.

Workers who want to take leave for care-giving reasons must provide documentation that includes the child’s name and the name of the school or day care that has closed. They also must attest that no other suitable person will care for the child during the leave period.

The federal paid leave program is set to expire at the end of the year. House Democrats passed a pandemic relief bill in May that would extend it until the end of 2021 and broaden its scope of coverage. Senate Republicans introduced their relief legislation last month that would do nothing for paid leave, advocates said.

—With assistance from Genevieve Douglas.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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