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Working Parents Get Some Virus-Leave Leeway in Revised DOL Rule

Sept. 16, 2020, 8:46 AM

Working parents whose children have hybrid school schedules due to the pandemic don’t need their employers’ permission to take federal leave, the U.S. Labor Department said.

That type of reduced-schedule leave under the Families First Coronavirus Response Act doesn’t qualify as “intermittent leave,” DOL said in a revised rule that takes effect Wednesday. Unlike leave to care for a child in a school that blends at-home and in-class instruction, periodically taking leave under the virus law for other reasons must first be authorized by a worker’s employer, according to the rule.

The Labor Department amended its April regulation on coronavirus leave in response to a federal court’s Aug. 3 decision striking down several regulatory provisions, including the employer-authorization requirement for leave to care for a child whose school is closed because of the coronavirus. The New York attorney general’s office challenged the rule in court.

DOL’s revised rule doubled-down on its prior position that intermittent leave requires employer consent. The department also added its view that time off related to caring for a child in a hybrid school framework isn’t technically intermittent.

The federal leave program, created by Congress’s first major virus relief package, requires employers with fewer than 500 workers to provide two weeks of paid sick leave to employees unable to work due to the pandemic. 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.

Although many schools started the new academic year with complete distance learning, some have rolled out hybrid models that working parents would have to plan around. For example, New York City—the largest public school system in the country, with nearly a million students—is set to offer a mix of in-school and at-home learning when it opens next week.

Balance, With Some Uncertainty

With its revised rule on intermittent leave, “DOL struck a balance between employees’ need to take leave with employers’ interest in avoiding disruption,” said Jeff Nowak, a Littler Mendelson attorney who counsels employers on leave issues.

Still, requiring workers to get their employers’ permission for intermittent leave is a “significant restriction,” Molly Weston Williamson, director of the paid leave initiative at the nonprofit advocacy group A Better Balance.

“Many working parents won’t be able to take leave that’s entitled by law in the way that works best for them,” Williamson said.

The Labor Department’s revised rule and associated guidance also created confusion about when taking leave due to school closure is considered intermittent, said Susan Harthill, a Morgan Lewis & Bockius lawyer and former deputy solicitor at DOL. Employers will need to obtain more information from workers to establish what type of leave they’re taking and whether they need permission, she said.

The unusual procedural posture of the litigation also adds uncertainty, Harthill said. The revised rule, which reinstates provisions that were struck down by a ruling that’s still on the books, could face another court challenge, she said.

Looming Court Challenge?

The New York attorney general’s office spokeswoman said the court gave DOL permission to try rewriting its rule. The office is reviewing the department’s revisions, the spokeswoman said.

A Labor Department spokesman declined to comment.

Generally speaking, it’s not uncommon for an agency to go back to the drawing board to fix defects in a rule that was overturned for not being properly justified, administrative law scholars said.

U.S. District Judge J. Paul Oetken cited the department’s insufficient reasoning in his ruling that struck down part or all of four provisions in DOL’s first version of its leave rule. Oetken didn’t specify the scope of his ruling, but on Sept. 11 the Labor Department said it considered the decision to apply nationwide.

In its revised rule, the department stood firm on its view of the approval requirement for intermittent paid leave and the mandate that workers can only take leave if there’s actually work available for them, said Burton Garland, a lawyer at Ogletree Deakins Nash Smoak & Stewart.

DOL gave ground to the court’s opinion on the definition of health-care providers who are exempt from the leave law and the timeline for when workers have to give notice for leave, Garland said.

The Labor Department has until early October to decide whether to appeal any part of Oetken’s ruling, Garland said.

Nowak, the Littler paid-leave specialist, said it would be better for workers and employers if there were no more court challenges related to the paid leave regulations.

“Hopefully, cooler heads will prevail,” he said.

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; Karl Hardy at khardy@bloomberglaw.com

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