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Revised Virus Paid-Leave Rule Moves to White House for Review

Sept. 4, 2020, 12:57 PM

The U.S. Labor Department sent an updated rule on coronavirus-related paid leave requirements to the White House for final review, setting up the administration’s first response to a court decision that shot down key aspects of the original regulation.

A final rule on paid leave under the Families First Coronavirus Response Act landed Thursday at the White House Office of Information and Regulatory Affairs, typically the last stop before public release, according to a posting on the office’s website Friday. The OIRA notice doesn’t provide further details about the rule’s substance, but the development follows a Bloomberg Law report Monday that DOL officials were hustling to complete a revised regulation to address a federal judge’s opinion last month that vacated four elements of the original April 1 rule.

In his Aug. 3 decision, Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York determined that the department illegally interpreted the March virus-relief law to exclude too many health-care workers from up to 12 weeks of paid family and sick leave. Oetken also invalidated 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 to provide documentation before taking leave.

DOL media representatives didn’t immediately respond to a request for comment Friday about the contents of the new regulation.

Since Oetken’s ruling, employees and employers have dealt with a regulatory vacuum, unclear about exactly which types of health-care workers may be newly eligible for paid leave when suffering from Covid-19 or caring for a child whose school is closed due to the virus. The DOL’s Wage and Hour Division, which enforces the rule, has yet to issue a statement about the court’s decision, and the Justice Department hasn’t said if it will appeal the ruling.

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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