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Punching In: DOL Silent on Paid-Leave Rule as Schools Head Back

Aug. 24, 2020, 9:31 AM

Monday morning musings for workplace watchers

Paid-Leave Silence | Scrutiny Over LGBT Ruling | Teachers Unions Counterattack

Ben Penn: Today marks three weeks of silence from the Labor Department since a federal judge in Manhattan struck down parts of DOL’s rule on emergency paid sick and family leave for people affected by Covid-19. But DOL officials have quietly discussed the possibility of issuing a new rule geared toward the health-care sector, sources familiar with the matter said.

The Aug. 3 decision from Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York has huge ramifications, and DOL’s lack of a response to the ruling has created mass confusion among employers and workers about how it applies to leave requests.

The judge vacated parts of the final rule that broadly defined health-care exemptions; that allowed employers to deny leave if they didn’t have work available; and that required workers get employer consent to take intermittent leave. Small- and midsize health-care employers and in many other industries are scrambling to determine if they’re now obligated to extend leave benefits to workers who were previously deemed ineligible. Workers are likewise in the dark.

Rule Talks: DOL and Justice Department officials have been deliberating about whether to appeal, three sources said. There’s also been talk within DOL about the Wage and Hour Division potentially issuing a new regulation to adopt a narrower definition of health-care providers that are exempt from the initial rule’s mandate to offer qualified individuals up to 12 weeks of paid leave through 2020, the sources said. The status of those talks isn’t clear.

School-Related Woes: In addition to the regulatory vacuum over which types of health-care providers are excused from the rule, workers with children whose schools opt for remote learning still don’t know the parameters around seeking intermittent leave to provide care during periods of the workday.

DOL and DOJ representatives didn’t respond when asked if the public should interpret the judge’s decision to apply nationwide or only in New York, and whether any combination of an appeal, a new rulemaking, or interpretive guidance is in development.

Internal Confusion: DOL’s national office hasn’t told investigators at the Wage and Hour Division, which is responsible for enforcing the regulation, whether they’re supposed to revise casework on the paid-leave law in accordance with the ruling, an enforcement employee at WHD said.

“It is like it never happened,” the WHD worker said about the department’s reaction to the ruling.

Appeal Timeline: DOJ has until early October to file an appeal to the Second Circuit. But even if that happens, the administration would need to convince a judge to put the district court ruling on hold pending the outcome of the appeal.

It’s complicated to get two government agencies on the same page. Nevertheless, countless workers, business executives, and attorneys want clarity from the administration about exactly what Oetken’s ruling means.

Paige Smith: The DOL faces a deadline next week in another regulatory matter—this one involving Congress.

Rep. Jamie Raskin (D-Md.), chair of a House Oversight and Reform subcommittee focused on civil rights, requested that DOL “reevaluate and alter” multiple “discriminatory” proposed rules and policies in light of the U.S. Supreme Court’s landmark ruling in Bostock v. Clayton County that federal workplace protections extend to LGBT workers.

Religious-Exemption Rule: One of the proposals Raskin highlighted in a letter to Labor Secretary Eugene Scalia on Wednesday is the Office of Federal Contract Compliance Programs’ attention-grabbing proposed rule that would codify exemptions from anti-bias requirements for religious entities holding federal contracts. The proposal was released just over a year ago, but there hasn’t been official word from the agency about timing of a final version.

Status Update: On the same day as Raskin’s letter, Keir Bickerstaffe, an official in DOL’s Office of the Solicitor, said during a webinar that the agency continues to work on a final rule. Multiple attorneys who work closely with the OFCCP on enforcement matters, however, said they haven’t heard anything about a final rule nearing completion—a process that’s far more complicated now with the November election nearing.

Oversight Pressure: Raskin is clearly turning up the heat. His letter, which referenced the committee’s investigatory powers, asked DOL to provide a plan by Sept. 2 that “describes the steps that the Department will take to reevaluate and alter these discriminatory policies in light of the Supreme Court’s ruling in Bostock.”

Labor Department spokesman Edwin Nieves said in a statement that DOL “remains committed to enforcing Executive Order 11246, which prohibits discrimination against employees on the basis of sexual orientation and gender identity.”

Ian Kullgren: As the Trump administration and Republican governors push schools to return to in-person learning, teachers’ unions are counterattacking in local courts. The most prominent example is the Florida Education Association’s challenge of an order by Republican Gov. Ron DeSantis (R), but labor leaders in at least three other states have contested state and local policies that require teachers to show up in person for training or instruction.

So far, the results have been mixed.

New Mexico: An American Federation of Teachers branch prevailed in a suit against Gallup-McKinley County Schools that argued the district’s plan violated a state virus mandate allowing teachers to work remotely. The district last week agreed to a settlement to permit most teachers to work from home, a development that came after the district was initially unwilling to bargain, said Shane Youtz, an attorney who represented the union. The district initially had planned to require in-person training and remote lessons delivered from classrooms, he said.

The union’s success also came after the state education department said in a memo that “no staff member that has the technological capacity to teach or perform their job remotely shall be required to physically report to the building.”

Texas: An AFT affiliate in Texas wasn’t as lucky. It abandoned a similar lawsuit last week after the Texas Supreme Court overturned a temporary restraining order a lower court had granted.

Cypress-Fairbanks Independent School District administrators argued the lower court didn’t have authority to block policies requiring teachers to return for mandatory training sessions before the start of the school year. The union ultimately said it didn’t have time to litigate the issue before the start of classes.

Iowa: A National Education Association branch filed suit last week challenging Republican Gov. Kim Reynolds’ plan to allow schools to opt out of in-person instruction based on the local Covid-19 threat rather than opt in. Like the Florida lawsuit, the Iowa State Education Association argues the decision isn’t the governor’s to make. That authority “lies with the individual school board of every school board across the state,” said Jay Hammond, the union’s general counsel.

Hammond told reporters last week that the union seeks a temporary injunction against Reynolds’ order.

“We are looking for a quick resolution, even though it may be temporary,” he said.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us. See you back here next Monday.

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com; Ian Kullgren in Washington at ikullgren@bloombergindustry.com

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